Cunha v. Gallery

• Decision Date: 18 June 1908
• Citation: 69 A. 1001,29 R.I. 230
• Parties: CUNHA v. GALLERY.
• Court: Rhode Island Supreme Court

69 A. 1001

29 R. I. 230

CUNHA

v. GALLERY.

Supreme Court of Rhode Island.

June 18, 1908.

Case Certified from Superior Court, Providence County.

Action by Manuel J. Cunha against Catherine M. Gallery. On demurrer to the declaration certain questions were certified to the Supreme Court. Cause remanded, and certified questions answered.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

William J. Brown, for plaintiff. Edward M. Sullivan, for defendant.

BLODGETT, J. This case is an action in assumpsit, brought in the district court of the Eighth judicial district, to recover damages for the failure of the defendant to convey to the plaintiff certain real estate in the town of Cranston in accordance with her agreement. Said defendant had given to the plaintiff a memorandum in writing of said agreement, as follows: "I have sold this place to Manuel J. Cunha for $2,100 cash, and is all clear of mortgage. [Signed] Catherine M. Gallery." The defendant had also given the plaintiff a deed, which contained a description of the property so agreed to be conveyed to the plaintiff. Upon these facts certain questions of law arose at the hearing on the defendant's demurrer to the plaintiff's amended special count of the declaration, which have been duly certified to this court under section 478 of the Court and Practice Act of 1905.

The following are the questions so certified: "(1) Was the memorandum in writing above referred to a sufficient memorandum to satisfy the statute of frauds? (2) Did the deed alleged to have been delivered to the plaintiff by the defendant, as above referred to, constitute a part of the memorandum in writing? (3) Was the above memorandum, together with the deed above referred to, a sufficient memorandum in writing to satisfy the statute of frauds?"

In Ray v. Card, 21 R. I. 362, 43 Atl. 846, the words of description were "that lot," and the description was held to be insufficient to answer the requirements of the statute; the court holding that, "while resort may be had to parol evidence to fit the description to the land, such evidence is inadmissible where there is no description." We are of the opinion that the case at bar is ruled by this decision, and accordingly we answer the first question in the negative.

Chancellor Kent, in his observations on the requirements of the statute, says (2 Kent, Comm. *511): "Unless the essential terms of the sale can be ascertained from the writing itself, or by a...