Dineen v. Sullivan
| Decision Date | 13 October 1949 |
| Docket Number | No. 8877,8877 |
| Citation | 213 P.2d 241,123 Mont. 195 |
| Parties | DINEEN et al. v. SULLIVAN et al. |
| Court | Montana Supreme Court |
Albert C. Angstman, Helena, for appellants.
Ralph J. Anderson, Helena, J. R. Wine, Sr., Helena, argued orally.
John F. McGough, Boulder, Toomey, McFarland & Wagner, Helena, for respondents.
Edmond G. Toomey, Helena, Charles N. Wagner, Helena, argued orally.
This is an appeal from an order of the district court of the Fifth Judicial District of the State of Montana, in and for the County of Jefferson, dismissing the action, after sustaining a demurrer to the amended complaint upon plaintiff's refusal to further plead.
A demurrer had been sustained to the original complaint and the amended complaint was then filed. The amendment consisted in the main of the allegations in paragraph III.
The plaintiffs, by the amended complaint, seek to establish a completed, binding contract, resting in parol, and evidenced by a note or memorandum called 'memorandum of agreement,' whereby they seek to compel the defendant, as an individual and in her capacity as executrix of the last will and testament of her deceased husband, to specifically perform the alleged completed and binding oral contract, by selling and transferring to them real and personal property, valued at $65,000 located at Alhambra, Jefferson county, Montana.
The memorandum agreement is as follows:
'20 July 1946.
'Memorandum of Agreement.
'This agreement witnesseth:
'That we have this day agreed to sell to Robert Lee Wine, of Helena, Montana, the property known as Alhambra Hot Springs, located at and near Alhambra, Jefferson County, Montana, consisting of approximately 800 acres, including Sunny Side Hot Springs and Alhambra Hot Springs, inclusive of plunge, Hotel completely furnished, and certain other personal property, for the consideration of $65,000.00, payable in installments, provided the first installment, in the amount agreed upon, is made and paid on or before August 15th, 1946.
'It is agreed that the purchaser's interest in this contract, or any part thereof, may be assigned.
M. J. Sullivan and Margaret F. Sullivan, the sellers and signers of the memorandum of agreement, were husband and wife and owners of the valuable property mentioned in the memorandum of agreement. M. J. Sullivan died after the signing of the memorandum of agreement, and his widow was appointed executrix of his last will and testament.
The 'Warranty deed, formal contract embodying the terms agreed upon by the sellers and the purchaser, and all other papers, to be drawn by Wm. Scallon, Esq., of Helena, Montana,' were never drawn, made and signed.
The Revised Codes of Montana, 1935, applicable here, in part, provide as follows:
Section 7519: 'The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or his agent:
'1. An agreement that by its terms is not to be performed within a year from the making thereof. * * *
Section 7591: 'No sale of personal property, or agreement to buy or sell it for a price of two hundred dollars or more, is valid, unless:
Section 7593: 'No agreement for the sale of real property, or of any interest therein, is valid, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent, thereunto authorized, in writing * * *.'
Section 10613: 'In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of its contents:
'1. An agreement that by its terms is not to be performed within a year from the making thereof. * * *
Since the transaction and agreement involved: The sale of real property; the sale of personal property of a value of more than two hundred dollars; and was not to be performed within one year; and was not in writing; it was invalid, unenforceable and no evidence could be received thereof, unless the memorandum of agreement was sufficient to meet the requirements of the note or memorandum mentioned in the foregoing sections of the Revised Codes of Montana, 1935.
The statutes of Montana do not say what shall be contained in such note or memorandum. Little might be needed in a simple pay and take agreement; and much in a more involved transaction and agreement.
This court has said that the note and memorandum must contain the essentials of the contract so that they may be ascertained from the writing without a resort to oral evidence.
In Lewis v. Aronow, 77 Mont. 348, 251 P. 146, 149, this court said: (Emphasis supplied.)
The essentials of the oral contract alleged in the amended complaint which are contained in the memorandum of agreement are: (1) The names of the parties; (2) that the Sullivans agree to sell; (3) a general description of the real and some of the personal property; (4) the location of the property; (5) the purchase price of $65,000 payable in installments; (6) the date of payment of the first installment; (7) payment of $25 by the buyers, as earnest money; and (8) that warranty deed, formal contract embodying the terms agreed upon by the seller and the purchaser, and all other papers to be drawn by William Scallon, Esq., of Helena, Montana.
The essentials of the oral contract and agreement, as alleged in paragraph III of the amended complaint and not contained in the memorandum of agreement, are: (1) that $10,000 was to be the first installment on the purchase price; (2) that the balance of the purchase price ($55,000) was to be paid in eleven successive annual payments of $5,000 each; (3) interest at five percent. per annum on unpaid balances of principal, each annual payment with interest to be paid, on or before the 15th day of August of each of the years 1947-1957; (4) possession of the real property to be delivered to plaintiffs on August 15, 1946; (5) possession of the personal property to be delivered to plaintiffs on August 15, 1946; (6) the warranty deed and bill of sale would be delivered to plaintiffs upon payment of the first installment; (7) that the plaintiffs would execute and deliver a first mortgage on the real and personal property as security for purchase price balance; (8) that the parties would prorate the taxes, insurance and liquor licenses for the year 1946 and that plaintiffs would assume payment of the same for 1947, and subsequent years; and (9) that plaintiffs would keep the premises and personal property insured.
One of the most material elements and essentials of the oral contract was the mortgage, to be given in securing the payment of the $55,000 balance of purchase price, a complete, binding, written contract in itself, the terms of which could well or ill protect defendant's stake, over the long stretch of eleven years. From a reading of the memorandum of agreement, one could not determine if the deed was to be delivered upon payment of the first installment, a mortgage being then required, or if the deed would be placed in escrow, requiring an escrow agreement, with delivery of the deed in eleven years, upon the final installment of $5,000 being paid.
'Unless the essential terms of the sale can be ascertained from the writing itself, or by reference in it to something else, the writing is not a compliance with the statute; and, if the agreement be thus defective, it cannot be supplied by parol proof, for that would at once introduce all the mischiefs which the statute was intended to prevent.' Williams v. Morris, Ex'r, 95 U.S. 444, 24 L.Ed. 360; 25 R.C.L., p. 649, sec. 276.
'Generally speaking, a memorandum in writing meets the requirements of the statute of frauds that certain contracts shall be evidenced by writing if it contains the names of the parties, the terms and conditions of the contract, and a description of the property, sufficient to render it capable of identification.' 49 Am.Jur., 'Statute of Frauds,' sec. 321, p. 635.
It is sufficient as evidence if the person to be bound signs a statement or document in which he admits that the parties made the oral contract, sufficiently stating therein its...
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...verbal agreement must contain all the terms of that agreement. Otherwise, it cannot be enforced at law or in equity. Dineen v. Sullivan, 123 Mont. 195, 213 P.2d 241 (1950); 4 Williston on Contracts, § 575 (3d ed. Here it is uncontested that the parties in their oral agreement intended that ......
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