Lee v. Cherry

• Decision Date: 04 May 1887
• Parties: LEE v. CHERRY,
• Court: Tennessee Supreme Court

4 S.W. 835

85 Tenn. 707

LEE v. CHERRY,

Supreme Court of Tennessee.

May 4, 1887

Appeal from chancery court, Shelby county.

Estes & Warinner, for complainant. Gantt & Patterson, for defendant.

LURTON J.

This is a bill for the specific performance of a contract for the sale of a lot in the city of Memphis. The only question necessary to consider is as to whether the sale is sufficiently evidenced by a writing to take it without the statute of frauds. It is not essential that the contract of sale shall be in writing, provided there is produced a writing containing the terms of the oral contract, and authenticated by the signatures of the party to be charged. The language of the fourth section of the statute is "Unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person thereunto by him lawfully authorized." The "memorandum or note thereof" relied upon in this case is found in letters passing between the vendor and his agent at Memphis, by which it is clearly shown that the defendant authorized the sale of the lot, by his agent, for $6,000, one-third cash, balance in one and two years, with interest. After some negotiations between the agent and the complainant, it is shown, by one of the letters of the agent to the defendant, that he had contracted for the sale of the lot to "Mr. Lee" upon the terms demanded by the owner. Some dispute afterwards arose between the vendor and his agent as to the commissions of the latter the vendor insisting that he must have $6,000 net. The latter concludes a letter to his agent insisting upon $6,000 net, with the agreement: "If you want it at that price, send me deed, and I will sign and return to you." This dispute about commissions was finally settled by the vendor agreeing to pay $125 in full, and the agreement of the agent to accept this. A deed was drawn up by the vendee, and forwarded by the agent to the defendant, along with an abstract of taxes due on the lot, which were to be paid by the vendor. These taxes proving heavier than anticipated, the vendor peremptorily declined to sign the deed, and withdrew the lot from the market.

The letters passing between Mr. Bacon, the agent, and Mr. Cherry the vendor, refer to and connect with each other, and contain all the terms of the sale, and a sufficient description of the property. These letters of the vendor to his agent, stating a...