Lindsey v. Humbrecht

• Decision Date: 09 May 1907
• Docket Number: 15.
• Citation: 162 F. 548
• Parties: LINDSEY et al. v. HUMBRECHT.
• Court: U.S. District Court — Northern District of Georgia

162 F. 548

LINDSEY et al. v. HUMBRECHT.

No. 15.

United States Circuit Court, N.D. Georgia.

May 9, 1907

On Final Hearing, June 9, 1908.

Bunn &amp Bunn, James & Hutchins, and Arnold & Arnold, for complainants.

Dodd &amp Dodd and Dorsey, Brewster, Howell & Hyman, for defendant.

NEWMAN District Judge.

The demurrer to the bill in this case presents the question as to whether certain papers set out constitute together such a memorandum in writing as will bind the defendant to a contract for the sale of land, and, further, whether the facts alleged are sufficient to show such part performance on the part of the complainant as to require the defendant to perform the contract.

A telegram set out in the bill is as follows:

'Dallas, Ga., 5-- 11, 1906.

'R. O. Pitts, Com'l Bank, Cedartown, Ga. Compelled to be home Saturday. Will take the land at seven. Wire me Atlanta train 32. Has Lindsey accepted?

Victor J. Humbrecht.'

And the following:

'Cedartown, Ga., May 11th, 1906.

'Victor J. Humbrecht, c/o Seaboard train 32, Atlanta. Lindsey accepts your offer of seven per acre.

R. O. Pitts.'

And this letter:

'R. O. Pitts, Esq., Pres. Commercial National Bank, Cedartown, Ga.-- Dear Sir: I am inclosing you my check for $10,000 to be put to my credit. I have just arrived, and must leave immediately for my home in Atlantic City. Kindly acknowledge receipt of this, and I will advise you Monday when I will be able to go down and close arrangements.

'Yours very truly,

Victor J. Humbrecht.'

And this letter of May 14, 1906:

'R. O. Pitts, Esq., Pres. The Com'l Bank, Cedartown, Ga.-- Dear Sir: In reply to your letter of 11th inst. will say that I shall leave Philadelphia on next Monday night, the 21st inst. reaching your town early Wednesday morning. In the meantime, Mr. Lindsey can have an agreement prepared, say $5,000 to be paid on that date, and $15,000 more when titles are examined and deeds prepared, (which I suppose will take up some little time, according to the number of conveyances), and the balance in one, two or three years, or sooner if desired. * * *

'Yours very truly,

Victor J. Humbrecht.'

Also letter of May 19, 1906:

'R. O. Pitts, Esq., Prest. Com'l Bank, Cedartown, Ga.-- My dear sir: Kindly credit the enclosed check for $10,000 to my account. I will reach your town on Tuesday evening instead of Wednesday morning, as I expected. Hoping to see you on my arrival, I am

'Yours very truly,

Victor J. Humbrecht.'

A copy of an agreement is set out in the pleadings between Mrs. N. C. Lindsey and George W. Lindsey of Polk County, Ga., and Victor J. Humbrecht, party of the second part, of Philadelphia, Pa. The agreement is signed only by Mrs. N. C. lindsey and G. W. Lindsey, and is attested by W. H. Trawick, and R. O. Pitts, N.P., Polk county, Ga. The contract, in substance, sets out that Mrs. N. C. Lindsey and G. W. Lindsey own a large tract of improved and unimproved lands in Polk county, Ga., containing 137 40-acre lots; a part of said land being owned by Mrs. Lindsey in her own right, the remainder by G. W. Lindsey the tract of land being identified by a drawing or map attached to the agreement. It is further recited that the Lindseys had on that day agreed to sell and convey unto Humbrecht the entire tract of 137 lots as numbered in the map attached, the conditions of the sale being the consideration of $7 an acre, exclusive of the right of way of the East & West Railroad, terms $10,000 cash, or within 30 days from date, and the 30 days being to give an opportunity to Humbrecht to examine the title to the property; $10,000 when the entire tract is delivered to Humbrecht, the remainder of the purchase money to be paid on or before two years from date, with interest at the rate of 7 per cent. from January 1, 1907, or such time as Humbrecht received possession; the Lindseys to account to Humbrecht for the interest on $10,000 at 7 per cent. from date until they should deliver possession of the entire tract to Humbrecht. The Lindseys are to have taken up and canceled all mortgages, judgments, and liens before any cash is paid. G. W. Lindsey is to execute a deed to Mrs. Lindsey for his lots, and Mrs. Lindsey is to execute her warranty deed to Humbrecht conveying to him the entire 137 lots. All the papers above described were to be delivered in escrow with the Commercial Bank of Cedartown, Ga., attached to a copy of the agreement. It is further agreed that Humbrecht shall have 30 days to examine the title of all the lots, provided so much time shall be required; and, provided the same is clear of all mortgages, judgments, and liens and outstanding recorded title superior to that held by the Lindseys then the Commercial Bank is authorized to deliver to Humbrecht the two deeds named--that is from G. W. Lindsey to Mrs. N. C. Lindsey and Mrs. N. C. Lindsey to Humbrecht-- and to deliver to the Lindseys the mortgage, the note, and one of said checks for $10,000 the second check for $10,000 to be delivered as soon as possession of the premises is delivered to Humbrecht. The examination of the title to the land to be in good faith. The bill alleges that the deeds from Lindsey to Mrs. Lindsey and from Mrs. Lindsey to Humbrecht (profert of which is made) were executed and deposited in escrow in the Commercial Bank, with the agreement.

Do these letters and telegrams and the contract and deeds bear internal evidence of their connection with each other so as to bind Humbrecht to the alleged contract for the sale of the land in question? In the first telegram Humbrecht proposes to take the land 'at seven.' The answer is: 'Lindsey accepts your offer of seven per acre. ' The letter of May 14th, signed by Humbrecht, says 'Lindsey can have an agreement prepared,' and afterwards the contract referred to above was signed by the Lindseys, and R. O. Pitts was one of the witnesses, and W. H. Trawick the other witness. In his letter of May 14th Humbrecht says he will pay $5,000 when the agreement is prepared, and $15,000 more when titles are examined and deeds prepared, balance in one, two, and three years, being practically $20,000 cash, balance on time. On May 12th he had sent $10,000, and on May 19th he sent $10,000, making $20,000 sent to Pitts. Undoubtedly, judged by the papers alone, this $20,000 was sent for the purpose of carrying out the arrangement to buy the land of the Lindseys. It seems to me reasonably clear that these papers, taking their contents, and without any extrinsic evidence, would be sufficient to show that they referred to each other, and that the first telegram from Humbrecht indicated that he would take the land afterwards embodied in the agreement from the Lindseys at seven dollars an acre, and the Lindseys, not only by Pitts' telegram of May 11th, but by signing the agreement and executing the deeds deposited in escrow, indicated their acceptance of the offer.

It is well settled by authority that the writing required by the statute may consist of more than one paper, and, if taken together without extrinsic evidence it is sufficient to show the character of the contract, its terms, and the lands or interests therein conveyed, it is a good memorandum in writing. In the case of North & Company v. Mendel & Bros., 73 Ga. 400, 54 Am.Rep. 879, while the decision was against the sufficiency of the writing in that case, I think the language used in the opinion by Justice Hall shows that, if the papers had been as in this case, the contract would have been upheld:

'We are of opinion that this memorandum, taken by itself or in connection with the telegram, does not satisfy the requirements of the statute. Without such evidence it would be impossible to connect those papers as forming parts of the memorandum of the agreement relied on. The statute does not require that all the terms of the contract should be agreed to or written down at one and the same time, nor on one piece of paper; but, where the memorandum of the bargain is found on separate pieces of paper, and where these papers contain the whole bargain, they form such a memorandum as will satisfy the statute, provided the contents of the signed papers makes such reference to the other written paper or papers as to enable the court to construe the whole of them together as containing all the terms of the bargain. If, however, it be necessary to adduce parol evidence, in order to connect a signed paper with others unsigned, by reason of the absence of any internal evidence in the signed paper to show a reference to, or connection with, the unsigned papers, then the several papers taken together do not constitute a memorandum in writing of the bargain, so as to satisfy the statute'-- citing 1 Benjamin on Sales, Sec. 220, and note 24.

There is a slight variation between the terms of the agreement as set out in Humbrecht's letter of May 14th and that contained in the agreement signed by the Lindseys. I do not know that this is material, however. The difference is that in Humbrecht's letter he says:

'Mr. Lindsey can have an agreement prepared, say $5,000 to be paid on that date and $15,000 more when the titles are examined and deeds prepared, and the balance in one, two, or three years, or sooner if desired.'

In the agreement signed by the Lindseys it provides:

'Terms: $10,000 cash or within thirty days from date, the thirty days being to give opportunity to Humbrecht to examine the title to the property; $10,000 when the entire tract is delivered to Humbrecht, the remainder of the purchase money to be paid on or before two years from date.'

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