Eppich v. Clifford

• Citation: 6 Colo. 493
• Parties: EPPICH v. CLIFFORD.
• Decision Date: 01 April 1883
• Court: Supreme Court of Colorado

6 Colo. 493

EPPICH v. CLIFFORD.

Supreme Court of Colorado

April, 1883

Error to District Court of Arapahoe County.

THE facts are sufficiently stated in the opinion.

Messrs HERR and CLEMENT, for plaintiff in error.

Messrs DECKER and YONLEY, for defendants in error.

HELM J.

This action was brought by plaintiff in error in the court below for the specific performance of a contract to sell real estate. A demurrer was sustained to the complaint, and the action dismissed.

The only statement in writing concerning said contract is the following:

'DENVER December 17, 1880.

'Received of Christopher A. Eppich the sum of $25 part payment for lots 1, 2, 3, in block 28, Case & Ebert's addition to Denver. Consideration, $2,000.

'MICHAEL CLIFFORD,

'Per A. M. GHOST & CO., Agents.'

But one error is assigned; it presents for our consideration the sufficiency of the foregoing receipt, as a note or memorandum, to avert a bar of the action under section 8 of our statute of frauds and perjuries.

This section provides that 'every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is made.'

The exact form of the note or memorandum above mentioned is immaterial, and a receipt is sufficient if it contain the essential elements of the contract. Either party may act by an agent, and in some cases both are so represented, as where the memorandum is that of the auctioneer who conducts the sale.

It has been held under a similar statute that the note or memorandum must show on its face, or by reference to other writings, first, the names of the parties, vendor and vendee; second, the terms and conditions of the contract; third, the interest or property affected; and fourth, the consideration to be paid therefor. McConnell v. Brillhart, 17 Ill. 361, and cases there cited; Wood v. Davis, 82 Ill. 313.

Does the instrument to which objection is made in this case sufficiently comply with the foregoing requirements as to the contract? No fault can be found with the description therein of the premises. When no particular portion of the property is mentioned, the whole of the grantor's interest therein is presumed to have been intended. Fry on Specific Performance, sec. 223.

The consideration is clearly stated to be $2,000, upon which a payment of $25 is shown to have been made. It is equally clear that defendant in error is the vendor, and that he acted through Ghost & Co., his agents. So our inquiry is narrowed to two questions: First, does the receipt show on its face who the vendee or purchaser is; and secondly, does it sufficiently state the terms and conditions of the contract? Failing in either of these requirements it is fatally defective.

No greater particularity can be required in a memorandum like the one under consideration than would be necessary in the contract if the effort had been made to formally and fully reduce it to writing, and the same rules of construction are equally applicable to both. If the names and intention of the contracting parties can be determined with reasonable certainty from the language of the instrument, and a valid contract is thereby disclosed, specific performance may be decreed thereon. We are not prepared to accept the position taken in Sheid v. Stamps, 2 Sneed, 176, cited by counsel, concerning language similar to that in the memorandum before us. The degree of particularity required by that opinion is rarely found in written contracts, unless drawn with all the care and skill of an experienced legal mind. That case would seem to call for more than reasonable certainty in the language of the instrument. Some presumptions of fact are allowable even in the action for specific performance; and when one is shown by proper evidence to have negotiated and consummated a transaction, and to have advanced money in connection therewith, the presumption fairly arises that he acted for himself, in the absence of evidence disclosing an agency.

This instrument states that defendant in error received from plaintiff in error the sum of $25, part payment for lots Nos. 1, etc. The natural and legitimate inference, in the absence of anything to the contrary, is that plaintiff in error was himself the purchaser. In Evans v. Prothero, 13 Eng. Law & Eq. R. 163, and in Ross et al. v. Baker, 72 Pa. St. 186, it was expressly held that receipts, exactly like the one before us in this respect, sufficiently stated the names of the purchasers.

Upon the remaining question we encounter more difficulty in arriving at a satisfactory conclusion. There is considerable conflict in the cases, and we might sustain either view as to the sufficiency of the receipt in stating the terms of the contract by citations of authority.

W...