Howell v. Inland Empire Paper Co.

• Decision Date: 24 February 1981
• Docket Number: No. 3944-III-7,3944-III-7
• Parties: D. Vern HOWELL and Della F. Howell, Appellants, v. INLAND EMPIRE PAPER COMPANY, a corporation, Respondent.
• Court: Washington Court of Appeals

Page 494

28 Wn.App. 494

624 P.2d 739

D. Vern HOWELL and Della F. Howell, Appellants, v. INLAND EMPIRE PAPER COMPANY, a corporation, Respondent.

No. 3944-III-7.

Court of Appeals of Washington, Division 3, Panel Four.

Feb. 24, 1981.

John M. Klobucher, Murphy, Bantz, Jansen, Klobucher, Clemons & Bury, Spokane, for appellants.

Peter Witherspoon and E. Glen Harmon, Witherspoon, Kelley, Davenport & Toole, Spokane, for respondent.

GREEN, Judge.

Plaintiffs Howell brought this action against the defendant, Inland Empire Paper Company (Inland), for specific performance or reformation and specific performance of an alleged agreement for an exchange of real property. Inland moved for summary judgment, asserting the description of its parcel of land is insufficient to satisfy the statute of frauds and is therefore void and unenforceable. Summary judgment was granted and the Howells appeal. We affirm.

The land in question was described as follows:

PARCEL A

Portions of Tracts 59, 58, 57, 56, 55, 62, 63 and 64, West Farms Irrigated Tracts # 3, situate in Section Six (6), Township Twenty-five (25) North, Range Forty-five (45), E.W.M., Spokane County, State of Washington, to consist of approximately 55.5 acres.

In Bigelow v. Mood, 56 Wash.2d 340, 341, 353 P.2d 429 (1960), the court reiterated the long-established rule that:

(I)n order to comply with the statute of frauds, a contract or deed for the conveyance of land must contain a description of the land sufficiently definite to locate it without recourse to oral testimony, or else it must contain a reference to another instrument which does contain a sufficient description.

(Citations omitted.) It is also well settled that a description which designates the land conveyed as a portion of a larger tract without identifying the particular part conveyed does not meet the requirements of this rule. Martinson v. Cruikshank, 3 Wash.2d 565, 567, 101 P.2d 604 (1940); Garrett v. Shriners Hospitals For Crippled Children, 13 Wash.App. 77, 79, 533 P.2d 144 (1975); cf. Kupka v. Reid, 50 Wash.2d 465, 468, 312 P.2d 1056 (1957); Mary M. Miller & Sons v. Daniels, 47 Wash. 411, 413, 92 P. 268 (1907) (tax foreclosure proceedings). An agreement containing an inadequate legal description of the property to be conveyed is void, Schweiter v. Halsey, 57 Wash.2d 707, 710, 359 P.2d 821 (1961), and is not subject to reformation, Fosburgh v. Sando, 24 Wash.2d 586, 589, 166 P.2d 850 (1946), Martinson v. Cruikshank, supra at 568-69, 101 P.2d 604, or specific performance Herrmann v. Hodin, 58 Wash.2d 441, 443, 364 P.2d 21 (1961).

Applying the above rules to the description here, we are constrained to find it void and as a consequence, specific performance of the agreement was properly denied. It is readily apparent from the legal description that the parcel to be conveyed cannot be located without resorting to oral testimony. Further, the writing here does not refer to any other instrument containing an adequate description. Finally, only "portions" of the various tracts within the larger tract are to be conveyed.

The Howells' position is that the parties intended to execute a binding agreement for the exchange of property; there is no dispute between them as to the exact property intended to be conveyed; and no innocent third parties will be damaged by enforcement of the agreement. ¹ They urge us to extend the decision in Powers v. Hastings, 93 Wash.2d 709, 612 P.2d 371 (1980), to this case. That case is not applicable here. There, a tenant sued his lessor and recovered damages for breach of an oral lease with an option to purchase. The court held that part performance removed the contract from the operation of the statute of frauds. The requirements for part performance were listed, at page 717, 612 P.2d 371:

(1) delivery and assumption of actual and exclusive possession; (2) payment or tender of consideration; and (3) the making of permanent, substantial and valuable improvements, referable to the contract.

It is further stated, at page 721, 612 P.2d 371:

Although the strongest case for part performance is presented where all three part performance elements possession, payments and improvements are present, this court repeatedly has found sufficient part performance where two elements exist. (Citing cases referring to possession and improvements or possession and payments.)

The Powers court found evidence of all three of these elements. The only arguable part performance by the Howells was a survey of the property they agreed to exchange with Inland, which was required by their agreement. This survey and an agreed amount of money was tendered to the closing agent. Possession, improvements and installment payments are all absent in this case.

Further, in Powers, in addition to part performance, the important terms of the contract were admitted in the pleadings and the testimony and were sufficient to award damages. The opinion noted at page 716, 612 P.2d 371 that an action for specific performance "demands a clear, definite, and precise understanding of all the terms; they must be exactly ascertained before their performance can be enforced.' " (Quoting J. Pomeroy, Specific Performance of Contracts, § 159 at 224 (2d ed. 1897). Here, the description of the property is unclear and the acts preparing for the exchange are not sufficiently referable to Inland's property to provide a basis for specific performance.

Neither do we find House v. Erwin, 83 Wash.2d 898, 524 P.2d 911 (1974), also relied upon by the Howells, to be controlling. That case held that a broker's listing agreement need not contain a complete legal description of the property listed in order to satisfy the requirements of the statute of...