Fox v. Courtney

• Decision Date: 01 July 1892
• Citation: 20 S.W. 20,111 Mo. 147
• Parties: Fox et al., Plaintiffs in Error, v. Courtney
• Court: Missouri Supreme Court

20 S.W. 20

111 Mo. 147

Fox et al., Plaintiffs in Error, v. Courtney

Supreme Court of Missouri, Second Division

July 1, 1892

Error to Jackson Circuit Court.

Affirmed.

H. B Johnson for plaintiffs in error.

(1) The memorandum calls for ground lying on the east side of Grand avenue, and between Missouri avenue and Sixth street. It is not stated in this memorandum that these streets and avenues are in Kansas City, Missouri; but this can be shown by parol evidence. Scanlon v. Geddes, 112 Mass. 15; Mead v. Parker, 115 Mass. 413; Burnett v. Kullak, 76 Cal. 535; Marriner v. Dennison, 78 Cal. 202; Hurley v. Brown, 96 Am. Dec. 671, and note; Briggs v. Munchon, 56 Mo. 467. (2) There could be no difficulty in ascertaining from the memorandum the location of the property; and, where that is the case, the memorandum is sufficient. Hollis v. Burgess, 37 Kan. 487; Phillips v. Swank, 120 Pa. St. 76; Francis v Barry, 37 N.W. 353; Morrison v. Dailey, 6 S.W. (Tex.) 426; Quinn v. Champaigne, 38 Minn. 322; Lente v. Clarke, 22 Fla. 515; Winn v Henry, 84 Ky. 48; Springer v. Kleinsorge, 83 Mo. 152; 8 American & English Encyclopedia of Law, 724.

John W. Snyder for defendant in error.

The memorandum utterly fails to describe the property, and, therefore, the statute of frauds forbids its enforcement. Upon this proposition we could confidently refer this court, if necessary, to every decision expounding the principle involved. King v. Wood, 7 Mo. 389; Whaley v. Hinchman, 22 Mo.App. 483; Marriner v. Dennison, 78 Cal. 208; Dobson v. Litton, 5 Cald. 616; Withnell v. Petzold, 104 Mo. 413; Kennedy v. Kennedy, 57 Mo. 78; Berry v. Hartzell, 91 Mo. 137; Nippolt v. Kammon, 40 N.W. 266; Halthouse v. Rynd, 11 Cent. Rep. (Penn.) 157; Howell v. Zerbee, 26 Ind. 214; Baldwin v. Kerlin, 46 Ind. 426; Parteriche v. Powlett, 2 Atkyns, 385 (Hardwicke's decision); Francis v. Barry, 69 Mich. 311; Tallman v. Franklin, 14 N.Y. 589; Holmes v. Evans, 48 Miss. 247; Holmes v. Johnston, 12 Heisk. 155; Clark v. Chamberlain, 112 Mass. 19. A demurrer lies, and the doctrine of election does not apply.

OPINION

Macfarlane, J.

The action was for alleged breach of contract in failing to purchase of plaintiff thirty-three feet of ground on the east side of Grand avenue, lying between Missouri avenue and Sixth street, and fronting on Grand avenue in Kansas City, Missouri, as agreed under the following contract:

"I agree to purchase of Lansdale Fox and M. H. Fox ground lying between Missouri avenue and Sixth street on the east side of Grand avenue, at four hundred dollars ($ 400) per front foot, payment to be made as follows: $ 500 down to bind the sale, one-third in thirty days, and one-third in one and one-third in two years, at eight-per-cent. interest.

"April 2, '86.

"(Signed) C. C. Courtney.

"Received of C. C. Courtney $ 1 on above.

"April 2, '86.

"(Signed) M. H. Fox."

Plaintiffs charged that on the day of the execution of said contract and in consideration thereof, and relying thereon, they entered into a contract in writing with the owner in fee of said thirty-three feet of ground for the purchase thereof, to whom they paid $ 100 cash to bind the bargain; that on the same day "they offered to defendant the same under the writing aforesaid, and on the terms therein agreed upon, and that they were ready and willing to convey or cause to be conveyed to defendant the said premises on the terms and at the price agreed upon, but defendant then and there refused to purchase the said property of plaintiffs as he agreed to do as aforesaid.

They further charged that they were compelled to sell said ground for the best price they could obtain at a loss of $ 5,575, for which they asked judgment. A general demurrer to this petition was sustained, and the case is brought to this court on a writ of error.

I. Several objections are made in this court to the sufficiency of the petition. One of these is that the contract is not sufficient to satisfy the statute of frauds on account of the uncertainty in the description of the land which is the subject-matter of the contract. We think this objection to the petition insuperable, and no other ground of demurrer need be considered.

The general rule given by Browne on the Statute of Frauds, section 371, is that the writing required by the statute "must contain the essential terms of the contract, expressed with such a degree of certainty that it may be understood without recourse to parol evidence to show the intention of the parties." And again in section 385: "It must, of course, appear from the memorandum what is the subject-matter of the defendant's engagement. Land, for instance, which is purported to be bargained for, must be so described that it may be identified." Fry on Specific Performance of Contracts, sec. 325.

While this certainty is required, the identification may sufficiently appear by reference to "an external standard, and need not be in terms explained." Thus a reference to deeds, conveying the same property or particular ownership or occupancy of the property, may be sufficient. But it will be found that the description of the land, when the subject-matter of the contract, must appear in the contract itself or from some reference in the contract to external matters by which it can be identified by extrinsic evidence. The description cannot be supplied altogether by parol. "The writing must be a guide to find the land must contain sufficient particulars to point out and distinguish the tract from any other. Browne on Statutes of Frauds, sec. 385; Fry on Specific Performance of Contracts, sec. 328; Moore v. Mountcastle, 61 Mo. 424; Kennedy v. Kennedy, 57 Mo. 73; Schroeder v. Taaffe, 11 Mo.App. 267; Clark v. Chamberlin, 112 Mass. 19; ...