Winn v. Henry

| Ky. Ct. App. | Apr 8, 1886

JUDGE LEWIS

DELIVERED THE OPINION OT THE COURT.

The appeal in this case is from the judgment of the lower court sustaining a general demurrer to the petition, in which the vendor, Winn, seeks to enforce the following contract in writing:

“I have this March 5, 1883, purchased from Wm. Winn Silver Lake Place, near Washington, Kentucky, containing fifty-two (52) acres, more or less, with his parlor furniture, including cooking stove, for twelve thousand five hundred ($12,500) dollars, one-third (J) cash, to be paid when possession is given in a few weeks, one-third of the remainder in one year from date, one-third in two years, and the remaining one-third in three years, the deferred payments to carry interest from, date until paid at the rate of six per cent, per annum.

“Ann P. Henry,

“Wm. Winn.”

It is substantially averred in the petition by the vendor that March 13, 1885, he offered to deliver possession of the land and personal property mentioned to the vendee, Henry, and at the same time-tendered to her a deed, duly executed and acknowledged, in which the land is described, and that he is ready, able and willing to make to her a good title to the land, and filed the deed with his petition, and tendered it in court.

As the vendor avers a willingness and ability, as well as offers to comply with his part of the contract in every essential particular, and that the vendee has wholly failed and refused to either accept the possession and deed or to make payment of the first installment of the purchase money, a prima; facie right to the specific execution prayed for in the petition, as well as the jurisdiction of the court to grant the relief, clearly exists, if the writing amounts to an enforceable contract; and whether it does or not is the only question.

It so appearing on its face, and there being nothing in the record to the contrary, the contract must be assumed as fair and just.

According to the uniform tenor of the decisions of this court, the land, as well as the personal property purporting to be the subject of sale and purchase, is indicated with sufficient certainty and distinctness to identify it; for the quantity of land,, the name of the place, as well as its locality, near to the town of Washington, Kentucky, are all stated.

In Overstreet v. Rice, 4 Bush, 1" court="Ky. Ct. App." date_filed="1868-09-21" href="https://app.midpage.ai/document/overstreet-v-rice-7378551?utm_source=webapp" opinion_id="7378551">4 Bush, 1, a contract of exchange of land, described in the written memorandum merely as the two farms of the two contracting parties, was upheld’. In Ellis v. Deadman, 4 Bibb, 466" court="Ky. Ct. App." date_filed="1816-12-02" href="https://app.midpage.ai/document/ellis-v-deadmans-heirs-8685300?utm_source=webapp" opinion_id="8685300">4 Bibb, 466, the writing was as follows: “4 January,. 1808: Received of Jesse Ellis $-, in part pay for a lot he bought of me in the town of Versailles, it being the cash part of the purchase of said lot by Nathan Deadman.”

In that case the court said: “If the receipt had specified the terms of the agreement, there would have been no doubt of the propriety of decreeing a special execution; for, although the receipt was. apparently intended only to be evidence of the payment which had been made, yet it would, in that case, have been, in fact, such a memorandum of the agreement as would have taken the case out of the provision of the statute.”

In this case the terms of the contract are fully and clearly set out, not only in respect to the subject of purchase and sale, but also as to the purchase price, and the time of payment of the several installments.

The agreement on the part of the vendee to purchase and to pay for the land and personal property is as explicit and direct as it could be made, and we think the covenant on the part of the vendee to sell, convey and give possession is equally obligatory and enforceable.

Although the language “I have this day purchased from Wm. Winn Silver Lake Place,” &c., interpreted literally, is an agreement or declaration by the purchaser simply, still, being assented to by the seller, as evidenced and indicated by his signature, he is as much bound by it as if he had in terms agreed to sell. Moreover, he expressly undertakes to give possession within a few weeks, which is definite ■enough as to time to make the agreement binding, and being a party to. the contract, the law implies an agreement by' him to do the only other thing necessary to complete the sale and purchase; that is, that he has and will make to the purchaser a good title.

We think the writing is evidence of a contract of sale and purchase, mutually binding upon the vendor and vendee, and as the case is now presented, appellant is entitled to the relief sought, and the court erred in sustaining a demurrer to the petition.

The judgment is reversed, and cause remanded for further proceedings not inconsistent with this opinion.