Doherty v. Hill

• Decision Date: 09 May 1887
• Parties: DOHERTY v. HILL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 465

11 N.E. 581

DOHERTY v. HILL.

Supreme Judicial Court of Massachusetts, Middlesex.

May 9, 1887

Contract for breach of contract to convey real estate situated in Stoneham. The defendant in her answer denied the signature and authority of the agent claiming to act for her, and also alleged that the contract declared upon was not a sufficient written contract to satisfy the statute of frauds. At the trial in the superior court before BLODGETT, J., J. Horace Green, who claimed to act as agent for the defendant, and who executed the contract referred to, testified for plaintiff that the estate referred to in said contract was placed in his hands by the defendant in May, 1884, at which time the defendant instructed him to sell it for the sum of $1,300 that on May 28, 1885, in reply to a telegram from him inquiring at what price she would sell, the defendant sent witness the following telegram: "J. Horace Green Stoneham: Eleven hundred and fifty cash. If possible, try for more. SARAH A. HILL;" that on May 30 1885, the defendant wrote witness a letter, which letter was given in evidence, and was as follows:

"NEWPORT, May 30, 1885.

"Dear Horace: I rec'd your 'tell.' all right; and, when I see you, will pay you for the one I sent you in reply. We are two miles from the city, and it costs one doll. to deliver a 'tell.' to me. As I 'tell.' you, I will sell the house in Lincolnville for 1,150 doll. Will pay last year's taxes, and throw in insurance, which lasts until 1887. The water is taken about half way down the street. The Water Co. will take it to the house if wanted, that is, to the St. line, free of expense. I think my price is low enough for the house. It was well built for a Mr. Bean, he paying 2,527 dollars for it. I will make terms easy for the party purchasing it, say three or four hundred down, and the other payments satisfactory secured by mortgage. Have the deeds of the property with me, and will come up if you make the sale. You can send a letter to me any time up to Sat. at this place. After that time I will send you word where to direct. Please follow it up, and make the trade. Remember me to your mother, with kind regards to yourself and wife.

"Affectionately, AUNT SARAH."

Witness further testified that on June 1, 1885, at 9 A.M., and after receiving this letter, the witness received from the plaintiff $100 in cash, and gave to the plaintiff the following paper:

"$100. STONEHAM, June 1, 1885.

"Rec'd of Patrick Doherty one hundred dollars to bind sale of estate on Congress street owned by Sarah A. Hill. $350 cash. $850 in mortgage at 6 per cent. J. HORACE GREEN, Agent for Sarah A. Hill."

Witness further testified that he had never paid back to the plaintiff the $100 received, and that he told plaintiff he would pay interest on it, and that plaintiff could have the money whenever he called for it. The plaintiff offered the contract of sale in evidence, to which defendant objected, but the court admitted it. The defendant offered evidence tending to show a revocation by the defendant to Green of authority to sell; that such revocation was written May 30, 1885, and mailed May 31st, and not received by Green until after the delivery of the receipt for $100 to the plaintiff. There was evidence that the defendant owned several lots of land on Congress street, Stoneham, besides the one in question, but it appeared that the latter was the only one with a dwelling-house thereon. The plaintiff offered to show that the estate named in the receipt was the lot with the dwelling-house on it, and the defendant requested the court to rule that it could not be shown by extrinsic evidence to which of the defendant's estates on Congress street the written memorandum referred, but the court declined so to rule. The plaintiff offered in evidence a draught of a deed from the defendant to him of the estate the plaintiff claimed to have purchased, which draught was made by said Green, and sent by him to the defendant to be executed, and which defendant refused to execute; and this was admitted, under defendant's objection. The defendant, for the purpose of showing the value of the estate as affecting the question of damages, offered to prove that a real-estate agent had had it in his hands since December, 1885, with authority to sell it for $1,200, but no purchaser had been found. This evidence was excluded. The jury returned a verdict for the plaintiff for $200, and the defendant alleged exceptions.

COUNSEL

A.V. Lynde, for defendant.

The memorandum signed by the defendant's agent was not sufficient, as claimed under the demurrer and at the trial on the merits, to satisfy the requirements of Pub.St. c. 78, § 1. The authority of the agent was limited by the terms of the telegram of May 28th, and the letter of May 30th, and these fairly imply that, if the estate was not sold for cash, the terms were to be adjusted and agreed to by the defendant before there could be a binding contract to convey the estate. Dresel v. Jordan, 104 Mass. 412; Jarrett v. Hunter, 34 Ch.Div. 182; Hastings v. Weber, 142 Mass. 232, 7 N.E. 846. Besides, the description of the estate in the memorandum given by the agent is such that, without the aid of extraneous parol evidence, the plaintiff could not identify which one of the several lots of land owned by the defendant he claimed to have purchased of the defendant. Sherer v. Trowbridge, 135 Mass. 500; Clark v. Chamberlin, 112 Mass. 19; Sherburne v. Shaw, 1 N.H. 157; Welsh v. Bayaud, 21 N.J.Eq. 186.

The drafting and sending by the agent of a deed of the estate to the defendant before obtaining her assent to the terms of the credit to be granted by her, and after a revocation, sent by the defendant by the next mail to the agent, of his authority to complete the sale, was not competent evidence to establish the validity of the contract or memorandum made by defendant's agent.

Powers & Powers and J.C. Kennedy, for plaintiff.

The written agreement signed by the agent of the defendant was a sufficient memorandum to satisfy the statute of frauds. Hurley v. Brown, 98 Mass. 545; Mead v. Parker, 115 Mass. 413; Slater v. Smith, 117 Mass. 96; Gowen v. Klons, 101 Mass. 449; 1 Greenl.Ev. pars. 286, 288; Todd v. Taft, 7 Allen, 371. That resort may be had to parol evidence to furnish the means of interpreting and applying written agreements to the subject-matter of the contract is settled by the uniform current of authorities. Stoops v. Smith, 100 Mass. 63; Baker v. Hathaway, 5 Allen, 103; 1 Greenl.Ev. pars. 286, 288; Farwell v. Mather, 10 Allen, 322; Putnam v. Bond, 100 Mass. 58. There was no patent ambiguity in the contract. The defendant's letter of May 30, 1885, shows that the estate to be sold had a house upon it, and her testimony proves that this house was the only building that the defendant owned at that time upon Congress street. There was an attempt upon the part of the defendant to create a latent ambiguity in the written contract by parol testimony, and such ambiguity may be removed by the same kind of testimony. Hurley v. Brown, 98 Mass. 545, 548.

The draught of the deed made by the defendant's agent was admissible to show what estate was the subject of this written agreement, especially after the parol testimony introduced by the defendant. The subject-matter of the contract may be identified by proof of what was before the parties. Bradford v. Manly, 13 Mass. 139; Hogins v. Plympton, 11 Pick. 97; Clark v. Houghton, 12 Gray, 38.

The evidence offered by the defendant was too indefinite and immaterial to be admissible upon the question of the value of the estate. Evidence of an unaccepted offer is incompetent for the purpose of showing the value of an estate, ( Dunckley v. Middlesex Com'rs, 6 Allen, 92,)--much more, evidence of the absence of an offer.

OPINION

HOLMES J.

The memorandum would have satisfied the statute of frauds if the...