6 S.D. 47 | S.D. | 1894
On February 7, 1890, Johnson & Sutherland, two real-estate agents of Pierre, signed and delivered to one Howard, as agent of the defendant and appellant, a memorandum agreement which is as follows: ‘‘Received of Chas. B. Kennedy, by C. W. Howard, $100, to apply on the purchase of lots, as per list attached, in Wells 2nd addition to the city of Pierre, according to the recorded plat thereof. Price, three thousand. Terms, one-third cash, viz.: $1,000 cash on delivery of deed, and abstract of title. Balance as follows, to-wit, $1,000 in one year, $1,000 in two years, at 8 per cent. Deed to be delivered and money paid on or before ten days. In case said Kennedy does not pay said $1,000 within ten days, the $100 paid shall be forfeited. Sale subject to approval of owner. [Signed] Johnson & Sutherland.” To this agreement was annexed a list of 26 lots in Wells’ Second addition to the city of Pierre, giving the number of the lots and blocks, and prices of each. Within the 10 days specified in the memorandum, Johnson & Sutherland delivered to the appellant g.n abstract of title to the lots, which was retained by appellant without making any objection to the title. On February 15th the appellant signed and deposited as an escrow with Mr. McClure, a banker at Pierre, a check for $900, as follows: “Pierre, South Da
Numerous errors aré assigned in the record, but we shall only consider those discussed by counsel in their brief. These are that plaintiff failed to,establish on the trial — “First, that at the time at which the alleged contract was made, and at the time suit was brought, he was the owner in fee of the property described; second, that Johnson and Sutherland were the agents of the plaintiff for the sale of the property in question, and that, such agency was evidenced in writing; third, that there was a valid contract, such as is required by the statute of frauds; fourth, that such contract was mutual, and capable of being enforced or conformed to, that the defendant waived the limitation as to the time of acceptance of his offer, and that such waiver was communicated to the plaintiff, and that the delay in the production of the title deeds was on account of the' defendant; fifth, that there was such a part performance as to take the case out of the .statute; sixth that the agreement was so far executed that the refusal of full execution would operate as a fraud upon the party, and place, him in a situation which does not lie in compensation.”
Before proceeding to examine these, we will briefly notice the objection taken to the admission of any evidence under the complaint, on the ground that the same did not state facts sufficient to constitute a cause of action. We think the complaint is sufficient without the exhibit; but, if there was any defect, it was merely as to the form of the complaint,' and it could have been amended on the trial, and can now be ordered amended in the' court below, if it should be deemed necessary. This ques
It is alleged in the complaint that the plaintiff was the owner in fee of the property alleged'to have been sold to the appellant. This was denied by the answer. It is now contended by the learned counsel for the appellant that there was no evidence to justify the finding of the court that plaintiff was such owner. In addition to the abstract of title delivered to appellant, and retained by him without any objection to the title, and the fact that appellant, in declaring the sale off, makes no objection to the title, the plaintiff proved by the witness Cobb that the respondent was the owner. This evidence was admitted without objection to it on the ground that it was incompetent. To a question propounded to him, he says, ‘ ‘He [the respondent] was the owner of the lots, to my knowledge.” The question was objected to as leading, but not as incompetent. The objection was overruled. While the answer was not responsive to the .question, and might therefore nave been properly stricken out on that ground, and also as incompetent, no motion was made to strike it out, and it therefore stands as evidence in the case. Wendt v. Railroad Co. (S. D.) 57 N. W. 226. The evidence of Cobb was undisputed, and it is therefore sufficient to sustain the finding of the court.
It is further contended that there was no evidence that Johnson & Sutherland were the agents of the respondent, and that they were authorized in writing to make the contract known as “Exhibit No. 1.” The answer to this contention is that appellant is not seeking to charge or hold the respondent, and under such circumstances, some authorities hold that .it is not material whether respondent was bound or not. Fry, Spec. Perf. §§ 449, 450; Clasen v. Bailey, 14 Johns. 484; McCrea v. Purmort, 16 Wend. 460; Davis v. Shields, 26 Wend. 362. Again, the respondent, by adopting the acts of the agent, and executing and forwarding the deed, ratified the acts of the
This brings us to the important question in the case, namely: Was the evidence sufficient to show a valid and binding contract on the part of the appellant, under the provisions of the statute of frauds of this state. The sections of the statute bearing upon the question to be discussed are section 3544, subd. 5, which reads as follows: “The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or by his agent; * * * (5) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged, ” — and section 3617, the pertinent part of which is as follows: “No agreement for the sale of real property, or of an interest therein, is valid unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent thereunto authorized in writing. * * *” It will be observed that in both sections the only requirement is that the agreement, or some note or memorandum thereof, shall “be in writing and subscribed by the party to be charged.” The note or memorandum may be made subsequently to the agreement. Williams v. Bacon, 2 Gray, 387. The contract, note, or memorandum is not required to be contained in one paper, but may be contained in a number of papers, documents, or letters. In Greenleaf on Evidence (section 268), the learned author says: “It is sufficient if the contract can be plainly made out in all its terms from any writings of the party, or even from his correspondence, but it must all be collected from the writings. ’ ’ In Wharton on Evidence (section 872), it is said: “It is enough, in order to meet the requirements of the statute, if the substance
It appears from the undisputed evidence that appellant received from his agent, Howard, on the day it was executed, the memorandum signed by Johnson & Sutherland, and retained it; that he received the abstract of title and retained it; and that he signed and deposited with McClure a check for $900, being with the $100 paid, the cash payment specified in the contract. The counsel for the respondent contend that this, of itself, was a sufficient memorandum to bind the appellant. In this contention the counsel is to some extent sustained
Having held that there was a note or memorandum in writing of the contract, within the provisions of the statute of frauds, we do not deem it necessary to decide whether or not there was a sufficient part performance to take the contract out of the statute. The doctrine of part performance is only applicable when the contract rests in parol. When the contract is in writing, or there is some note or memorandum thereof in writing, the contract, as to the conveyance of realty, can be enforced, without regard to whether it has in part been per - ■ formed or not. Our conclusion is that the judgment of the court below should be affirmed, and it is so ordered.