Collyer v. Davis
| Decision Date | 21 December 1904 |
| Citation | 101 N.W. 1001,72 Neb. 887 |
| Parties | COLLYER v. DAVIS. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. It is not necessary that a memorandum, signed by the grantor, sufficient to evidence a sale of real estate, should all be contained in a single letter or communication; but if the contract can be ascertained from the entire correspondence between the parties, or from two or more separate papers referring manifestly to the same subject, without the aid of oral evidence, it will be a sufficient memorandum within the meaning of the statute of frauds.
2. While an undelivered deed, properly executed and placed in the hands of vendor's agent, is not, standing alone, a sufficient written memorandum to evidence a contract of sale of real estate, yet it does not follow that such undelivered deed, submitted to the grantee for inspection, may not be considered for the purpose of aiding an imperfect description in another written memorandum, signed by the vendor.
3. Evidence examined, and held to show a sufficient memorandum in writing, signed by the vendor, to take a contract of sale of real estate without the ban of the statute of frauds.
Commissioners' Opinion. Error to District Court, Douglas County; Read, Judge.
Action by George P. Collyer against Latham Davis. Judgment for defendant, and plaintiff brings error. Reversed.Smyth & Smith, for plaintiff in error.
I. E. Congdon, for defendant in error.
This was an action brought by plaintiff, George P. Collyer, in the district court of Douglas county, Neb., against defendant, Latham Davis, for damages for the alleged breach of a contract of the sale and purchase of a tract of land called “The Glebe,” situated in the state of Virginia. After the evidence was presented, defendant moved the court to direct the jury to return a verdict in his favor on the theory that the evidence failed to show that plaintiff, Collyer, as vendor, had ever made a note or memorandum in writing which would evidence the alleged contract of sale. The court accordingly directed a verdict as requested by defendant. A motion for a new trial was filed by plaintiff and overruled, and judgment was entered upon the verdict, and, to reverse this judgment, plaintiff brings error to this court.
The only question to be determined is as to whether the evidence introduced by plaintiff in the court below is sufficient to show a memorandum in writing, signed by the vendor of the lands, or his agents authorized by him in writing, to subscribe to such agreement. A contract for the sale of lands is governed by the provisions of sections 5 and 25 of chapter 32, Comp. St. 1903, which are as follows:
The land which formed the subject of this alleged contract is, as above stated, located in Westmoreland county, Va. The plaintiff is a resident of Virginia, and the defendant, at the time of the negotiations, was a resident of the state of Nebraska. In April, 1903, defendant, Davis, accompanied by one of his employés, named McDermott, went to Virginia for the purpose of purchasing land. At the village of Hague, in the state of Virginia, they met Messrs. Murphy & Mayo, who were real estate agents of the village and county. The lands in dispute had been placed in charge of these agents by plaintiff, Collyer, under a contract in writing, signed and sealed by the plaintiff, which, after fixing the terms and price of the land, contained the following condition: The terms named in the contract were $8,000, payable one-fourth down, and the remainder in one, two, and three years. After defendant, Davis, and his employé had examined the land, according to plaintiff's testimony, Davis offered $5,500 for the land--one-third down, one-third in one year, and one-third in two years. This offer was made on April 17, 1903, and was communicated to plaintiff by his agents, Murphy & Mayo, in the following telegram:
“George P. Collyer, Stanton, Va.--
Have offer $5500 for ‘Glebe.’ One-third cash, balance in one and two years. Answer at once.
[Sig.] Murphy & Mayo.”
On the following day plaintiff wired Murphy & Mayo as follows:
“Murphy & Mayo, Hague, Va.--
Will take $5000 net to me.
[Sig.] George P. Collyer.”
On the same day Collyer wrote to Murphy & Mayo as follows:
“Murphy & Mayo, Hague, Va.--
Gentlemen: Your telegram of this date, stating that you had offer of $5,500 for Glebe, just received. I wired that I will take $5,000 net to myself, leaving $500 for your commission. I am not anxious to sell the place, because I bought it for a future home and also believe I can get more money for it in a year or two. So it makes very little difference to me whether you close out the place at $5,500 or not.
Thanking you for your kindness,
Yours very truly, George P. Collyer.”
On receipt of this communication Murphy & Mayo on the 19th of April wrote to plaintiff, Collyer, that they had completed the sale with the defendant, Davis, who had just left for the state of Nebraska, leaving Mr. McDermott, according to plaintiff's testimony, to complete the arrangements for the transfer of the place, and take possession for him as soon as the papers had been exchanged and the terms of the contract completed. At the same time Murphy & Mayo wrote Collyer this last letter, they wired to defendant, Davis, at Omaha, as follows:
“Latham Davis, Omaha, Neb.--
Mr. Collyer accepted your offer. I am glad to say you can send check to McDermott. We will search title and make papers.
Murphy & Mayo.”
On the 30th of April, defendant, Davis, wrote to Murphy & Mayo as follows: * * *” At the bottom of this letter was marked “Over,” and the following memorandum was placed on the back of the letter: “Cash $1833.34, note one year $1833.33, note two years $1833.33, total $5500.”
On May 8th, Murphy & Mayo wired defendant at Omaha:
“Latham Davis, Omaha, Neb.--
Have closed deal with Collyer according to terms of your letter of April 30.
Murphy & Mayo.”
Following all this correspondence, Murphy & Mayo procured a deed to the premises, duly executed and acknowledged by the plaintiff, and also had drawn up two notes according to the terms of the agreement, and a sight draft of five days for the one-third cash payment, and inclosed these papers with a memorandum of the title of the land, and transmitted them through the bank at Alexandria, Va., to the First National Bank of Omaha, as directed by defendant, Davis, for his inspection, and with directions that the deed should be delivered on payment of the draft and the execution of the notes and deed of trust, and that the notes and deed of trust should be sent back to the bank at Alexandria, Va. When the deed, draft, notes, and mortgage were received at the First National Bank of Omaha, certain objections were interposed to the chain of...
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