Goetz v. Hubbell

Decision Date25 April 1936
Docket Number6408
Citation266 N.W. 836,66 N.D. 491
CourtNorth Dakota Supreme Court

Appeal from District Court, Sheridan County; R. G. McFarland, Judge.

Action by A. J. Goetz against G. A. Hubbell. Judgment for defendant and plaintiff appeals.

Modified and affirmed.

Syllabus by the Court.

1. Under the statute of frauds (Comp.Laws 1913, § 5888) an agreement for the sale of real property is invalid unless the same, or some note or memorandum thereof, is in writing and subscribed by the party against whom the agreement is sought to be enforced.

2. To render such memorandum sufficient, it is not necessary it be signed by the other party to the agreement.

3. Such memorandum need not be a complete contract in itself. It is the written evidence of the contract, and while parol evidence may not be introduced to vary the terms of such memorandum, nevertheless parol evidence may be introduced to explain the same and make it certain.

4. Written receipts, signed by the party to be charged, which show that part of the purchase price of real estate described in the receipt has been paid by the other party and which sets forth the purchase price and a description of property is a sufficient memorandum to take an agreement out of the statute of frauds and parol evidence may be introduced to supply proof in harmony with the statements made in the receipts and in explanation thereof.

5. With proof of the contract furnished by the memorandum as required, the court will enforce the contract as made by the parties, and the party sought to be charged cannot be required to accept payment in any other manner or form than that agreed upon.

Peter A. Winter, for appellant.

Such an essential term as the time of payment of the purchase price must be stated in the contract or memorandum in order to render the contract enforceable. Ebert v. Collin, 33 L.R.A.(N.S.) 84; 9 Ann. Cas. 1060; 5 Wigmore Ev. 2d ed. 362.

To be sufficient as a note or memorandum under the Statute of Frauds, a writing must be complete in itself, leaving nothing to rest in parol. 27 C.J. 267; Cooper v. Pierson (Mich.) 180 N.W. 351; Catterline v. Bush (Or.) 65 P. 1064; Fritz v. Mills (Cal.) 150 P. 375; 25 R.C.L. 647.

A memorandum which shows that certain terms of credit and of payment of the purchase price have been agreed upon, but which does not show what the terms are, is defective. Page Contr. § 1350; Elliott v. Barret, 10 N.E. 820; Baker v. Haswell, 128 P. 1086; Main v. Pratt, 114 N.E. 576; Jacobson v. Lambert, 156 A. 763.

An executory agreement for the sale of land which fails to describe or otherwise identify the land and name the purchase price and the time of payment is not enforceable in a court of equity. Swisher v. Conrad (Fla.) 80 So. 564; Heacock v. Kniesley, 224 P. 184; Fry v. Platt, 3 P. 781; Fox v. Easter, 62 P. 283.

A court of equity will not enforce a contract indefinite or uncertain in its terms. Shumway v. Kitzman, 134 N.W. 328.

Parol evidence is admissible to show that the memorandum does not contain all of the terms verbally agreed upon by the parties, not for the purpose of contradicting the memorandum, but to show that it does not fulfill the requirements of the statute. 27 C.J. 385; Wigmore, Ev. 2d ed. 362, § 2454; Carpenter v. Murphy (S.D.) 167 N.W. 175.

The doctrine of part performance is purely an equitable doctrine based solely on the jurisdiction to prevent and relieve against fraud. 27 C.J. 343; Bahnsen v. Walker, 214 P. 732.

The acts of part performance must be such that it would be a fraud upon the party seeking the decree for the other to refuse to perform. Baldwin v. Baldwin, 84 P. 568.

Nothing is considered as part performance which does not put party into situation which is fraud upon him unless the agreement is performed. Demick v. Schneider, 34 S.W.2d 1004; Zeller v. Yorkville Park Co. 252 N.Y.S. 626.

Possession to constitute part performance of a verbal contract for sale of land sufficient to take the contract out of the statute of frauds must be connected with the contract, and not referable to some other cause. Richman v. Richman, 175 A. 179; Baker v. Bouchard, 10 P.2d 468; Cannon v. Cannon, 163 S.E. 405; Dimick v. Schneider, 34 S.W.2d 1004.

Improvements under oral conveyance must be valuable in something more than tenant expected to occupy the property for years would make for his own comfort and convenience. McCallister v. McCallister, 173 N.E. 745; 58 C.J. 1015.

George Thom, Jr., and Hyland & Foster for respondent.

When a contract is reduced to writing the intention of the parties must be ascertained from the writing alone if possible, subject, however to the other provisions of law (§§ 5895 to 5921 inclusive, Comp. Laws 1913). Bronson v. Chambers, 51 N.D. 741, 200 N.W. 906; Janssen v. Muller, 38 S.D. 611, 162 N.W. 393.

The law does not require the party to be charged shall distinctly state in the paper subscribed by him all the terms of the contract but these may be contained in other writings referred to and to which he, in terms or by his silence, assents. Townsend v. Kennedy, 6 S.D. 47, 60 N.W. 164; Ruzicka v. Hotovy (Neb.) 101 N.W. 328; Finkelstein v. Kessker, 84 N.Y.S. 266.

An amount of certainty must be required in the specific performance of a contract in equity greater than that demanded in an action for damages at law. Fry, Spec. Perf. § 229; Atwood v. Cobb, 26 Am. Dec. 663.

Payment of the consideration, accompanied by an entry into possession of land, under a verbal contract, is such part performance as will remove the bar of the statute of frauds and support an action for specific performance. Townsend v. Vanderwerker, 160 U.S. 172, 40 L. ed. 383; Heuer v. Heuer, 64 N.D. 497, 253 N.W. 856; Mitchell v. Knudson Land Co. 19 N.D. 736, 124 N.W. 946; Engholm v. Ekrem, 18 N.D. 185, 119 N.W. 35.

Burr, J. Burke, Ch. J., and Nuessle, Morris and Christianson, JJ., concur.


The plaintiff owned and operated a general store in his own building in Lincoln Valley, and sold his stock of goods to the defendant in the fore part of May 1934. They discussed the use of the building and lots and agreed on a monthly rental of $ 40.00 for six months. At the same time the plaintiff offered to sell the building to the defendant for $ 2,000.00 in monthly payments of $ 50.00, defendant claiming the offer included the fixtures. Defendant asked for time for consideration, which was granted, no definite time being fixed. Nothing was said about interest or taxes, and no memorandum of agreement was made.

Defendant gave no formal notice of acceptance of the offer to sell, but on June 2, 1934 paid $ 50.00 in cash and prepared a receipt which was presented to the plaintiff and signed, as follows:

"Lincoln Valley, N.D., 6-2-34

"Received of G. A. Hubbell the sum of Fifty Dollars as payment on purchase of building & Fixtures of Lots 3-4-5 blk 2 at a price of $ 2000.

"A. J. Goetz."

The parties differ as to what took place immediately afterwards -- plaintiff claiming he met the defendant and asked him what he meant by having Lot 3 and the word "fixtures" inserted in the receipt, and defendant responded, "I will come over later and see you." Plaintiff made no objection to the statement as to the purchase of the building and other lots.

On June 30, 1934 another payment of $ 50.00 was made and the receipt recited that the money was "To apply on the purchase contract for Building & Fixtures." Again, on July 30, a payment of $ 50.00 was made and this receipt recites that the money was received "to apply in payment on purchase contract for building and fixtures on lots 3-4-5 Blk 2 of Lincoln Valley at the price of $ 2000."

On September 1 and October 1 other payments of $ 50.00 each were tendered, with receipts of the same tenor. Plaintiff refused to accept payment until, as he says, "Mr. Hubbell comes over and lines up a promise." The offer to sell was not withdrawn before the three monthly payments of $ 50.00 were accepted, if withdrawn then. Thereafter the defendant deposited in a bank of good repute $ 50.00 per month, to the credit of the plaintiff, and subject to his check, until the sum of $ 450.00 had been deposited. Plaintiff paid the taxes, though defendant claims he attempted to do so and found them paid. During all this time the defendant was in possession of the building and operated his store therein.

After going into possession the defendant made improvements on the building, but those which are of a permanent nature are negligible in value.

The plaintiff commenced this action to determine adverse claims to the property involved. At no time did he offer to return the money received on the purchase price nor to pay for any improvements made. Neither did he demand the payment of any rent, nor tender any written contract of sale and purchase. Defendant claims these payments were a sufficient acceptance by him of the contract of sale and bind the plaintiff, if the contract be without the statute of frauds. The trial court gave judgment for the defendant, holding there was a valid contract for the purchase of the buildings and "that there is due upon said contract, from the defendant to the plaintiff, the sum of $ 2,000.00 with interest from and after May 14, 1934, at the rate of 6%, amounting to the sum of $ 160.00 making a total of $ 2,160.00, less the sum of $ 600.00 paid thereon by the defendant, with interest at the rate of 6% per annum on the payments as made, from the date of making of the same, said interest amounting to $ 29.50 making a total to be applied on said purchase price of the sum of $ 629.50 and leaving due and unpaid thereon the sum of $ 1,530.50 as of the 14th day of September, 1935."

The plaintiff appeals demanding...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT