Forsyth v. Brillhart, 202

• Decision Date: 28 April 1958
• Docket Number: No. 202,202
• Citation: 216 Md. 437,140 A.2d 904
• Parties: Joseph H. FORSYTH v. Lloyd A. BRILLHART et al.
• Court: Maryland Court of Appeals

Page 437

216 Md. 437

140 A.2d 904

Joseph H. FORSYTH v. Lloyd A. BRILLHART et al.

No. 202.

Court of Appeals of Maryland.

April 28, 1958.

William J. Dwyer, Hagerstown, for appellant.

Charles F. Wagaman (Wagaman & Wagaman, Hagerstown, on the brief), for M. G. Hoffman et al.

Omer T. Kaylor, Sr., Hagerstown, for Lloyd A. Brillhart.

Bruce C. Lightner, Hagerstown, for Edith V. Leaf et al.

Before HENDERSON, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

Joseph H. Forsyth has appealed from a decree of the Circuit Court for Washington County, which denied his request to set aside a deed and grant him specific performance of a contract.

The appellee, Brillhart, was the owner of a farm, which contained about 115 acres of land. The farm was encumbered by a mortgage and a judgment, and Brillhart owed other money upon open accounts--all totaling some $6,000. On May 6, 1957, Forsyth and Brillhart began negotiations relative to Forsyth's purchasing of the farm. The appellant testified that he made several trips to the farm within the next few days. During his conversations with Brillhart, it was agreed between them that Forsyth would purchase the property for $7,750; that Brillhart was to have the right to plow and seed about 15 to 20 acres for a corn crop, which would be cultivated and harvested by him, requiring Brillhart's possession of said tract until, at least, the latter part of November, 1957; that Brillhart reserved the cherry and berry crops; that Forsyth was to reconvey to Brillhart, if Brillhart so desired, a tract of about one acre of the land, upon which Forsyth was to have erected, for Brillhart, a small dwelling with the balance of the purchase money in excess of Brillhart's indebtednesses; and that if Forsyth built the new house for Brillhart, Brillhart could have possession of the existing dwelling on the property until the new house was completed, but if no new house were constructed, then 'sixty days we talked about' was discussed as to the delivery of possession of the existing dwelling. On May 9, 1957, after the above had been agreed upon, Brillhart signed the following memorandum:

'May 9, 1957.

'Received of Joseph H. Forsyth $50.00 as part payment on farm of 115 acres. Price to be $7,750.00. To be settled for on or before thirty days of this date.

'Lloyd A. Brillhart.'

A day or so thereafter, Brillhart went to Forsyth and tendered back the downpayment and requested a return of the memorandum, which was refused.

On May 21, 1957, Brillhart signed a contract with the appellees, Maurice G. Hoffman and wife, for the sale of the farm, and a deed conveying the property to the Hoffmans was executed and recorded. The Hoffmans had knowledge of the prior memorandum of sale, but they also had notice that Brillhart claimed the memorandum did not contain the full agreement.

I

It is obvious and conceded the transaction related above comes within the purview of the provisions of the Statute of Frauds. No question concerning the admissibility of evidence is here concerned. Cf. Fisher v. Andrews, 94 Md. 46, 52, 50 A. 407. The appellant earnestly contends that the memorandum, above quoted in full, is sufficient to satisfy the requirements of the Statute; while the appellees, just as seriously, urge that it is not. A contract required to be in writing under the Statute of Frauds cannot be enforced if it be partly written and partly oral. Applestein v. Royal Realty Corp., 181 Md. 171, 175, 28 A.2d 830; Rinaudo v. Bloom, 209 Md. 1, 8, 120 A.2d 184. In the recent case of Sinclair v. Weber, 204 Md. 324, 331, 332, 104 A.2d 561, this Court recognized the rule that while the name of the party to be charged must be signed to the memorandum, it is sufficient merely to name the other party or give some designation of him whereby he could be identified without parol proof; and adopted the statement of the American Law Institute that a memorandum, on order to make enforceable a contract within the Statute of Frauds, 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, (1) each party to the contract either by his own name, or by such a description as will serve to identify him, or by the name or description of his agent, and (2) the land, goods or other subject-matter to which the contract relates, and (3) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made. 1 Restatement, Contracts...