Burke v. Mead

• Decision Date: 09 October 1902
• Docket Number: 19,540
• Parties: Burke et al. v. Mead et al
• Court: Indiana Supreme Court

64 N.E. 880

159 Ind. 252

Burke et al. v. Mead et al

No. 19,540

Supreme Court of Indiana

October 9, 1902

Appeal from Wabash Circuit Court; H. B. Shively, Judge.

Suit by Benjamin F. Burke and others against Merritt C. Mead and others. From a judgment for defendants, plaintiffs appeal. Transferred from Appellate Court, under § 1337u Burns 1901.

Affirmed.

G. A Henry, P. H. Elliott, M. E. Forkner and A. H. Plummer, for appellants.

W. H Carroll, G. D. Dean and S.W. Cantwell, for appellees.

OPINION

Gillett, J.

The appellants filed their complaint in five paragraphs to obtain a decree for the specific performance of a contract by appellees. The latter successfully demurred to each paragraph of the complaint. A decree followed, that appellants take nothing by their suit, and the latter assign errors, based on said rulings on demurrer. Each paragraph of the complaint sets out, either in the body of the paragraph or as an exhibit thereto, a writing that it is alleged that appellees executed to appellants. The following is a copy of said writing: "Marion, Indiana, May 13, 1899. This agreement, made and entered into this 13th day of May, 1899, by and between M. C. Mead & Co., of Marion, Indiana, party of the first part, and Benjamin F. Burke and Wm. H. Anderson, party of the second part, witnesseth: That the party of the first part for and in consideration of the sum of $ 25,000 to them agreed hereby to be paid by the party of the second part, the receipt of $ 5 of which is hereby acknowledged, and the delivery by the said second party to the said first party within sixty days from this date the further amount of $ 23,500 in paid-up capital stock of a corporation to be by said second party organized and incorporated, capital stock $ 120,000, to be known as the Marion Electric Company, the said first party hereby agrees to sell, transfer, convey, and deliver with good and perfect title, free from liens and encumbrances, to said second party, the electric lighting and power plant now owned by said first party, located at Marion, Ind., with all the engines, boilers, machinery, poles, lines, cables, appliances and apparatus thereto belonging, together with all rights of way, gas rights, etc., and including the following described real estate, with the buildings and fixtures erected thereon, to wit: All that part of lot number twenty in White's second addition to the town, now city, of Marion, which lies east of Boots creek; also south half of lot number nineteen in White's second addition to the town, now city, of Marion, Grant county, Indiana. Said deed of conveyance to be executed by said first party within five days from this date, and placed in escrow with the Marion Bank, in Marion, Indiana, to be delivered by said bank to said second party upon their payment and delivery to said bank, for said first party within sixty days from this date, the stock above mentioned; and said second party upon their part agree to make said payment of cash within ten days, and said delivery to said bank within the time above mentioned, both cash and stock, or report to first parties within five days their inability to accept first parties' offer. In witness whereof the parties hereto have set their hands this day and date above written. [Signed] M. C. Mead & Co."

It is unnecessary to set out the several paragraphs of complaint. Some particulars of each of said paragraphs will, however, be stated hereafter. We deem it best to consider first, in a general way, some propositions that relate to most, if not all, of said paragraphs.

It was not necessary that the appellants should have signed the contract. The signatures of appellees to a sufficient note or memorandum would take it out of the statute of frauds as to them. § 6629 Burns 1901; Newby v. Rogers, 40 Ind. 9. The requirement of mutuality in a contract does not mean that there must be a mutuality of remedy. Grove v. Hodges, 55 Pa. 504, 516. A proposition in writing to sell real estate upon certain terms that is signed by the owner, and is not a mere offer, but rests upon a distinct consideration, may become binding upon a seasonable acceptance. Clark, Cont., 22, and see Cherry v. Smith, 3 Humph. 19, 39 Am. Dec. 150; Souffrain v. McDonald, 27 Ind. 269; Street v. Chapman, 29 Ind. 142; Fairbanks v. Meyers, 98 Ind. 92; Indianapolis Nat. Gas Co. v. Kibbey, 135 Ind. 357, 35 N.E. 392. It follows, therefore, that the contract that is here sought to be enforced does not stand condemned as lacking in mutuality.

We shall not, at this point, discuss the extent that it is permissible to reenforce a written contract by parol evidence. Courts of equity do, however, strenuously require, as a prerequisite to a decree of specific performance, that, after summoning all evidence with which it is admissible to support the contract, its provisions shall be clear and specific in all of their essential elements. Mr. Justice Story, in his work on Equity Jurisp. (13th ed.), at § 764, after stating that in former times able judges felt themselves at liberty to frame a contract for the parties, ex aequo et bono, where it found none, says: "Such a latitude of jurisdiction seems unwarrantable upon any sound principle, and accordingly it has been expressly renounced in more recent times." The following authorities fully support the later doctrine: Gas Light, etc., Co. v. City of New Albany, 139 Ind. 660, 39 N.E. 462; Louisville, etc., R. Co. v. Bodenschatz, etc., Co., 141 Ind. 251, 39 N.E. 703; Robbins v. McKnight, 5 N.J. Eq. 642, 45 Am. Dec. 406; Stanton v. Miller, 58 N.Y. 192; Atwood v. Cobb, 16 Pick. 227, and many cases cited in note to this case as reported in 26 Am. Dec. 657; Hamilton v. Harvey, 121 Ill. 469, 13 N.E. 210, 2 Am. St. 118; Blanchard v. Detroit, etc., R. Co., 31 Mich. 43, 18 Am. Rep. 142; Iron Age Pub. Co. v. Western Union Tel. Co., 83 Ala. 498, 3 So. 449, 3 Am. St. 758; Minnesota Tribune Co. v. Associated Press, 27 C. C. A. 542, 84 F. 921; Russell v. Agar, 121 Cal. 396, 53 P. 926, 66 Am. St. 35; Whitehill v. Lowe, 10 Utah 419, 37 P. 589. The reason for the requirement of certainty is thus pointed out by a well known writer on specific performance: "To sustain the latter proceeding [an action for damages], the proposition required is the negative one, that the defendant has not performed the contract--a conclusion which may be often arrived at without any exact consideration of the terms of the contract; whilst in proceedings for specific performance it must appear not only that the contract has not been performed, but what is the contract which is to be performed." Fry, Spec. Perf. (3d Am. ed.), § 361.

As the status of both parties is to be changed if a decree goes in favor of the plaintiff, it is evident that uncertainty in the contract as to the plaintiff's duty is quite as fatal an objection to the granting of equitable relief as uncertainty as to the defendant's obligation. Louisville, etc., R. Co. v. Bodenschatz, etc., Co., 141 Ind. 251, 265, 39 N.E. 703; Agard v. Valencia, 39 Cal. 292. This view finds at least implied expression in the following language of Mr. Justice Washington, used in the opinion of the court in Colson v. Thompson, 15 U.S. 336, 2 Wheat. 336, 340, 4 L.Ed. 253: "The contract which is sought to be specifically executed, ought not only to be proved, but the terms of it should be so precise as that neither party could reasonably misunderstand them. If the contract be vague or uncertain, or the evidence to establish it be insufficient, a court of equity will not exercise its extraordinary jurisdiction to enforce it, but will leave the party to his legal remedy."

It is to be recollected, however, with reference to the elements of certainty generally, that terms which the law implies need not be expressed, because the law is a component part of every contract that contains provisions that are open to legal interpretation. Foulks v. Falls, 91 Ind. 315; Long v. Straus, 107 Ind. 94, 57 Am. Rep. 87, 6 N.E. 123; Triebert v. Burgess, 11 Md. 452; Cooper v. Hood, 26 Beav. 293; Hudson Canal Co. v. Pennsylvania Coal Co., 75 U.S. 276, 8 Wall. 276, 288, 19 L.Ed. 349.

Appellees' counsel insist that certain averments of the several paragraphs of complaint relative to the contract are not to be considered, because of the effect of the statute of frauds where contracts lie in parol. We find ourselves unable to agree entirely with them. The old time controversy as to whether the note or memorandum must show the consideration on which the defendant's promise was founded was set at rest in this State in 1853 by the following provision that was enacted as a part of the statute of frauds: "The consideration of any such promise, contract or agreement need not be set forth in such writing, but may be proved." § 6630 Burns 1901. See Hiatt v. Hiatt, 28 Ind. 53. In the contract under consideration it is plainly stated what appellees were required to do, and, if the writing had not attempted to state the consideration for their promise, it is clear that under our statute it would have been competent to allege and prove the consideration. The writing does, however, undertake to state the consideration, but, as we shall hereafter show, states it indefinitely, and we think that it is competent to relieve the ambiguity to the extent that it is competent to explain other ambiguous writings not relating to transactions within the statute of frauds. Even statements that are of a contractual character, not made as mere recitals, are subject to explanation to the extent of identifying the subject-matter which is described in the contract in language too general to admit of specific application. Kieth v. Kerr, 17 Ind. 284; Mace v. Jackson, 38 Ind. 162; Heath v. West, 68 Ind. 548; Martindale v. Parsons, 98...