Williams v. Smith

161 Mass. 248 | Mass. | 1894

Allen, J.

The question which arises in this case under the statute of frauds is whether the contract declared on is shown by any sufficient memorandum or note thereof in writing signed by the defendant. If not, the action cannot be maintained. Pub. Sts. c. 78, § 1.

The contract declared on is an agreement made by the defendant on or about May 25,1892, to sell to the plaintiff certain land, in consideration of the plaintiff’s promise to buy the same; a mutual agreement for sale and purchase, entered into by both parties, and concluded on that day. The plaintiff testified that such a mutual agreement was orally made.

The writings signed by the defendant which are relied on to prove this agreement on his part are four in number; namely, a postal card on May 13, and letters dated respectively June 2, June 17, and July 6. The plaintiff admits that the contract is not sufficiently shown by the first three of these writings, and in order, if possible, to get further evidence, his son, who was an attorney in Connecticut, acting in his behalf, wrote to the defendant a letter, dated July 2, 1892, stating briefly the agreement according to the plaintiff’s view, and seeking to get from the defendant an admission that this was a correct statement of the facts. The defendant, however, in his answer, dated July 6, stated the matter differently, as follows: “ In reply to yours of July 2, will say I did say to your father that he could have the refusal of land at Newtonville for $10,000 for ten days.” This was a mere proposal or offer. It is not the contract declared on, nor does it appear to have been relied on as a contract at the trial. The plaintiff in his testimony, indeed, said that an oral offer was made by the defendant on May 12 to sell the land “ within a reasonable time.” He added that he had a second interview with the defendant some time between May 25 and May 27, when the defendant “definitely concluded to sell to me. The transaction was concluded definitely. He said I could have the land for ten thousand dollars, and I agreed to take it then and there.” So far as appears, no claim or suggestion was made at the second interview, or at the trial, that the defendant’s previous offer was still open; and if such claim or suggestion had been made, the defendant’s letter of July 6 contradicts it. The plaintiff’s case, both in his declaration and in his testimony at the trial, was put upon an agreement made by the defendant on or about May 25, and not upon a previous offer by the defendant which was accepted by the plaintiff on that day.

It was not in dispute that some offer had been made by the defendant at the first interview. The postal card dated May 13, in reply to the plaintiff’s telegram, shows this, though it does not show how long the offer was to remain open. The postal card was very general, and does not assume to contain any terms or details of the proposal, except merely that some offer had been ' made. The actual oral contract upon which the plaintiff’s case must rest is that which was made at the interview on or about May 25.

In determining whether there is written proof of that contract, we may and must look at all the correspondence. Where no one paper alone, which is formally signed, purports to express the terms of the contract, all the letters that passed between them must be considered in order to see what the contract actually was as shown by the writings. Hussey v. Horne-Payne, 4 App. Cas. 311, 316. Bristol, Cardiff, & Swansea Aerated Bread Co. v. Maggs, 44 Ch. D. 616. Bellamy v. Debenham, 45 Ch. D. 481.

Looking at all that passed between the parties, we find nothing in writing sufficient to show that the defendant entered into the contract declared on, and testified to by the plaintiff as having been made orally. Exceptions overruled.