Durham v. Dodd
| Decision Date | 05 July 1955 |
| Docket Number | No. 5912,5912 |
| Citation | 79 Ariz. 168,285 P.2d 747 |
| Parties | Millard M. DURHAM and Irma Jane Durham, his wife, Appellants, v. Grover C. DOOD, Appellee. |
| Court | Arizona Supreme Court |
Hall, Catlin & Molloy, Tucson, for appellants.
McCarty & Chandler, Tucson, for appellee.
Action by Grover C. Dodd against Millard M. Durham and his wife, Irma Jane Durham. The parties will be designated herein as they appear in the trial court.
The plaintiff and defendant Millard Durham purchased a lumber mill and timber in California and were operating the mill under the firm name of Bodega Bay Woods Product Co. The litigation before us resulted from alleged dealings concerning this operation.
The complaint is in two counts, one for specific performance of an alleged contract to sell to the plaintiff real property designated as the Speedway frontage mentioned in the writing hereinafter set forth. The second count is for $12,000 upon a promissory note.
Defendant Millard Durham answered denying the obligation represented by the note and alleging he offered, without the consent of his wife, to allow plaintiff a $12,000 credit for his interest in the California venture if plaintiff decided within three days to purchase the real property in Tucson; alleged the written instrument was without consideration and that the consideration had failed because plaintiff was unable to convey to the defendant the California property. He further answered that the executed instrument was conditional and plaintiff had failed to avail himself thereof. He also pleaded the Statute of Frauds. Mrs. Durham answered making the same denials and alleging she was not a party to the transaction and pleaded the Statute of Frauds.
At the close of the evidence, on motion made by the defendants, the plaintiff abandoned the first count and elected to ask for relief only on the indebtedness represented by the note.
Over defendants' objection the plaintiff was allowed to submit evidence to the effect that on September 17, 1952, the defendants entered into an oral arrangement whereby Mr. Durham agreed to take over whatever interest plaintiff had in the mill business and as consideration therefor Durham was to allow plaintiff to select one of two real properties located in Tucson and owned by the defendants. In connection with the deal Mr. Durham executed the following promissory note:
'$12,000
for value received, Millard M. Durham promise to pay to Grover C. Dodd, or order, at 2948 East Eighth St., Tucson, Arizona the sum of Twelve thousand dollars ($12,000.00), with interest thereon from date until paid at the rate of ___ per cent per ___, said interest payable _____, and both principal and interest payable only in current lawful money of the United States. And in case payment of this note, or any portion thereof, shall not be made at maturity, and suit be brought to enforce collection thereof, _____ further agree to pay the additional sum of _____ dollars, in like lawful money, as and for an attorney's fee.
/s/ Millard M. Durham'
Attached to this note was the following memorandum signed by the plaintiff and Mr. Durham:
'Bodega Bay, Calif.
'September 17, 1952
'This note drawn to the order of Grover C. Dodd is to be liquidated upon his acceptance of one of two properties as listed below:
3 unit Apartment at 1014 No. Seventh Ave or Speedway frontage at 4455 E. Speedway in Tucson, Arizona.
'/s/ Millard M. Durham
'/s/ Grover C. Dodd'
Plaintiff's evidence further indicated that the parties placed a value of $32,000 on the 3-unit apartment mentioned in the writing attached to the note; that this property was encumbered by a mortgage (established as being in the sum of $5,600); that plaintiff held an $8,000 mortgage on this property and other property of defendants; that, in the event plaintiff selected this property, he was to assume the $5,600 mortgage and cancel the $8,000 mortgage; and that, in the event he sold the property for more than sufficient to cover the two mortgages and the $12,000 represented by the note, he was to pay the difference to defendants.
As to the Speedway frontage mentioned in the memorandum, plaintiff testified that this frontage was to be 280 feet with a depth of 150 feet minus a 10-foot easement for an alley; that he was to assume a mortgage encumbering the entire property (the frontage was only a portion thereof) leaving the balance clear of encumbrances; and that, if he selected this frontage and sold it for more than sufficient to cover the encumbrances assumed and pay himself the $12,000 represented by the note, he was to pay the difference to defendants.
The defendants disputed portions of plaintiff's version of what was to happen in the event the deal was consummated. They testified that, in the event the plaintiff selected the Speedway frontage, he was also to cancel the $8,000 mortgage and that plaintiff was to make his selection in three or four days. They disputed the depth of the frontage claimed by plaintiff.
At the close of plaintiff's case and at the close of all the evidence defendants moved for a directed verdict upon various grounds, one being that the note sued on was an integral part of a contract for the conveyance of real estate and that the written memorandum in evidence was insufficient to meet the requirements of our Statute of Frauds, section 58-101, A.C.A.1939.
Whatever the terms of the deal made by the parties, it was indisputably contemplated that when and if plaintiff selected one of the two properties mentioned in the rider to the note, the defendants would be required to convey the same to the plaintiff. The defendant, Mrs. Durham, signed nothing and Durham signed only the note with the attached memorandum.
In the case of Shreeve v. Greer, 65 Ariz. 35, 173 P.2d 641, we quoted with approval the Restatement of the Law, Contracts, section 207, which prescribes the test to determine the adequacy of a memorandum to make enforceable a contract under the Statute of Frauds. This section provides:
'A memorandum, in order to make enforceable a contract within the Statute, may be any document or writing, formal or informal, signed by the party to be charged or by his agent actually or apparently authorized thereunto, which states with reasonable certainty,
'* * * (b) the land, goods or other subject-matter to which the contract relates, and
'(c) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made.'
It will be observed the writing in this case does not even approach stating the terms and conditions of all the promises constituting the contract. There is no reasonable certainty in the description of the Speedway frontage. The frontage may be located but it was to be taken off of a larger tract, leaving the back portion to the defendants free of encumbrances. The depth is not designated. Boundaries must be ascertainable from the memorandum. This cannot be supplied by parol. Michelson v. Sherman, 310 Mass. 774, 39 N.E.2d 633, 139 A.L.R. 960, Annotation 965. The only thing...
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Maricopa Realty & Trust Co. v. VRD Farms, Inc.
...promise sought to be enforced since the subject matter of the realty commission was stated with reasonable certainty. Durham v. Dodd, 79 Ariz. 168, 285 P.2d 747 (1955); McAlister v. Cooper, As a general rule, in the absence of a specific contract to the contrary, when a real estate broker h......
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Gray v. Kohlhase
...the terms and conditions of the promise sought to be enforced. McAlister v. Cooper, 91 Ariz. 191, 370 P.2d 767 (1962); Durham v. Dodd, 79 Ariz. 168, 285 P.2d 747 (1955). A statement of the compensation or commission to be paid is a vital part of the contract and unless there is some memoran......
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Custis v. Valley Nat. Bank of Phoenix
...matter to which the contract relates and the terms and conditions of all of the promises constituting the contract, Durham v. Dodd, 79 Ariz. 168, 285 P.2d 747 (1955); Young v. Bishop, 88 Airz. 140, 353 P.2d 1017 (1960). The essentials of a memorandum include, in an agreement of sale, the id......
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Nowell v. Andrew Wright Enterprises
...of all the promises constituting the contract and any deficiency in this regard cannot be supplied by parol. Durham v. Dodd, [79 Ariz. 168, 285 P.2d 747 (1955) ] ... We hold, therefore, that the memoranda relied upon by appellees were insufficient to satisfy the Statute of Frauds for lack o......