Block v. Sherman

• Decision Date: 24 June 1941
• Docket Number: 16661.
• Parties: BLOCK v. SHERMAN et al.
• Court: Indiana Appellate Court

34 N.E.2d 951

109 Ind.App. 330

BLOCK v. SHERMAN et al.

No. 16661.

Appellate Court of Indiana, in Banc.

June 24, 1941

Frederick K. Baer and Geo. A. Crane, both of South Bend, for appellant.

Wm T. Oare and Seebirt, Oare & Deahl, all of South Bend, for appellees.

BEDWELL Judge.

Appellant filed an action in the court below for specific performance of an agreement for the sale of real estate. The trial court sustained a demurrer of appellees to the second amended complaint and supplemental complaint of appellant. The appellant refused to plead further and he appeals from the resultant judgment.

The material facts, essential for a determination of the questions raised, alleged in the second amended complaint and supplemental complaint, are as follows:

"That on the 29th day of November, 1939, and for a long time prior thereto, the defendant, Augusta J. Sherman, was the owner in fee simple of the real estate known and described as lot #92 as shown on the recorded Plat of Harter Heights First Addition to the City of South Bend; also the west one-half (1/2) of lot #91 as shown on the recorded Plat of Harter Heights Second Addition to the City of South Bend Indiana, which said parcels formed one single building lot designated and carried on the records of the City Engineer of the City of South Bend, Indiana, as and commonly known in said city as 1304 Leeper Avenue, South Bend, Indiana.

"That on said date, the defendant, Augusta J. Sherman entered into an agreement with the plaintiff for the sale of said real estate and gave to said plaintiff a memorandum in her own handwriting of said agreement in the following words and figures, to-wit:

"Purchase 13500 Purchase Price

500 Paid on acc.

-----

13000 Bal.

"Taxes to be assumed-- 133.98 twice a year May and November

"1000 tax exemption to be made by May 1st Monday--

"Bal. to be paid cash--upon the delivery of Deed and Abstract brought up to date 267.96

"That by the terms of said agreement and the memorandum thereof, the defendant, Augusta J. Sherman, offered to sell said real estate for the sum of thirteen thousand five hundred ($13,500.00) dollars of which said sum of five hundred ($500.00) dollars was to be paid on the 29th of November 1939; that the plaintiff was to assume taxes due in the amount of one hundred thirty-three and 98/100 ($133.98) payable twice a year, and the balance of the purchase price was to be paid in cash upon the delivery of the deed and the abstract brought up to date. That plaintiff duly accepted all the terms of said agreement and the memorandum thereof.

"That thereupon the plaintiff gave to the said Augusta J. Sherman his check in the sum of five hundred ($500.00) dollars which was duly accepted by said defendant and a memorandum in writing of said payment and signed by the said Augusta J. Sherman was given to the plaintiff by her, same being in the following words and figures, to wit:

"Nov 29, 1939

"Received of Saul Block--$500.00 to apply on purchase price of $13,500 for property located at 1304 Leeper Avenue, South Bend, Indiana.

"(Signed) Augusta J. Sherman

"That as in said memorandum used the words and figures '1304 Leeper Avenue, South Bend, Indiana' was understood by said parties as referring to and embracing the real estate hereinabove described.

"That said above mentioned memoranda were both given to the plaintiff by the defendant at the same time and simultaneously upon her receiving the said check for five hundred ($500.00) dollars.

"Plaintiff further alleges that on the 30th day of November 1939, the said defendant gave notice of recission of said agreement to the plaintiff by registered mail, said notice being in the following words, to wit:

"First Bank and Trust Company of South Bend

"South Bend

"Indiana

"Dear Mr. Block: Am returning your check to you as Mr. Brown feels that I am morally obligated to let him have the place. Very sorry about it all.

"Very Resp. Augusta J. Sherman

"That upon receipt of said notice, plaintiff immediately notified the said defendant, Augusta J. Sherman, that he insisted upon her compliance with said agreement and that he rejected her recission of said agreement. * * *"

These pleadings allege further facts that show that the plaintiff was at all times ready, able and willing to perform all the terms of the agreement to be by him performed; that he notified the defendants, Samuel Brown and Anna Fae Brown, of his agreement for the purchase of the real estate and filed a lis pendens notice with the clerk of the court where his complaint was filed, and that thereafter the defendant, Augusta J. Sherman, conveyed the real estate to the defendants, Samuel Brown and Anna Fae Brown. The pleadings pray that the defendants be required to execute a deed to the described real estate upon the payment of the sum of thirteen thousand five hundred dollars ($13,500) by the plaintiff, and payment of taxes on such real estate, and that a commissioner be appointed, if necessary, to make said conveyance.

The questions for determination grow out of the Statute of Frauds (Burns' R.S. 1933, sec. 33-101; Baldwin's Indiana Statutes, sec. 8363). They are as follows:

1. Can the unsigned and undated written memorandum, set forth in the complaint, be considered with the signed receipt dated November 29, 1939, in order to make an enforceable contract within the terms of the statute?

2. If the unsigned and undated memorandum cannot be so considered, is the signed and dated receipt, within itself, a sufficient memorandum to make enforceable a contract within the statute?

The statute provides:

"No action shall be brought in any of the following cases:

"First. * * *

"Second. * * *

"Third. * * *

"Fourth. Upon any contract for the sale of lands.

"Fifth. * * *

"Unless the promise, contract or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized, excepting however, leases not exceeding the term of three (3) years."

It is well established that the memorandum may consist of several writings, if each writing is signed by the party to be charged and the writings indicate that they relate to the same transaction. Isphording v. Wolfe, 36 Ind.App. 250, 75 N.E. 598; Maris v. Masters, 31 Ind.App. 235, 243, 67 N.E. 699.

It is also well established that a memorandum may consist of several writings though one writing only is signed, if the signed writing is annexed to the other writings by the party to be charged, or the signed writing refers to the unsigned writing so as to make it a part of the instrument which refers to it.

In Pomeroy's Specific Performance of Contracts, 3d Ed. (1926), sec. 90, p. 217, the author states: "The subject-matter of the agreement must all be included in the memorandum, and must be described with sufficient exactness to render its identity certain upon the introduction of extrinsic evidence simply disclosing the situation of the parties at, and immediately before, the time of making the contract. * * * The description of the subject-matter may be wholly or partially contained in an auxiliary writing, which, if referred to in such a manner as to establish the connection, becomes a constituent part of the memorandum; * * *"

In Browne on the Statute of Frauds, 5th Ed., sec. 346b, on page 470, the author states: "It is often the case that the terms of the contract are not all contained in any one paper. The question then arises, under what circumstances two or more papers can be offered in evidence as together constituting the memorandum, one only or all being signed, as the case may be. With regard to the first case, the rule is that the letter or other paper that is signed is to be regarded as incorporating and reciting any other writing referred to in it.

It follows, then, that in the case of any signed paper, those writings referred to in it may be read, provided they were in existence at the time when the paper referring to them was signed. It seems also that one signature may apply not only to the paper on which it is written, but also to another which at the time of signing was attached to it in such a way as to indicate that the whole was intended to be recognized by the signer as one paper."

In Ridgway v. Ingram, 50 Ind. 145, 19 Am.Rep. 706, in discussing the sufficiency of a memorandum of a contract that was within the Statute of Frauds, the court says: "It seems to be well settled, that a memorandum, in order to make another writing a part thereof, so as to constitute a part of the...