Block v. Sherman
Decision Date | 24 June 1941 |
Docket Number | 16661. |
Parties | BLOCK v. SHERMAN et al. |
Court | Indiana Appellate Court |
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.
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:
500 Paid on acc.
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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:
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:
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...
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Block v. Sherman
...109 Ind.App. 33034 N.E.2d 951BLOCKv.SHERMAN et al.No. 16661.Appellate Court of Indiana, in Banc.June 24, Appeal from Superior Court, St. Joseph County; J. Fred Bingham, Judge. Action by Saul Block against Augusta J. Sherman and others, for specific performance of an agreement for the sale o......