Lingeman v. Shirk
| Decision Date | 21 February 1896 |
| Docket Number | 990 |
| Citation | 43 N.E. 33,15 Ind.App. 432 |
| Parties | LINGEMAN v. SHIRK, EXECUTOR |
| Court | Indiana Appellate Court |
Petition for rehearing overruled June 10, 1896.
From the Miami Circuit Court.
Judgment reversed, with instructions to sustain 442 the demurrer to paragraph of answer, and with leave to amend the claim if desired.
Tarkington & Effinger, H. P. Loveland and R. J. Loveland, for appellant.
L Walker, W. B. McClintic, A. C. Harris and J. Mitchell, for appellee.
The appellant's complaint is based upon the following written contract:
The supplemental contract is in these words:
The complaint avers, that appellant in all things complied with the contract, conveyed the Hendricks county land, by the decedent's direction, to Milton Shirk, son of decedent, who afterwards sold the land to strangers, receiving the consideration therefor; that Shirk paid the cash required, and conveyed the 1,703.29 acres in Poinsett county, which appellant selected; that appellant, on February 1, 1876, selected the remainder of his land from the west end of the island owned by decedent in Clayton county, and notified Mills and Shirk of such selection, and requested Mills to decide the number of acres to which he would be entitled upon the basis of the difference in value between the Craighead and Clayton county land; but that said Mills never did so decide, nor did Shirk ever convey to appellant any of the island land, although frequently requested to have the difference in value decided by Mills, and to convey to appellant the number of acres to which he was entitled; nor did he ever pay any money, or thing of value, for the balance of said lands. Appellant seeks to recover the contract price of the 2,136 acres of Arkansas land.
The second paragraph of complaint sets up the same state of facts substantially, save that it alleges that Mills was the agent of Shirk, having general management and control of his Arkansas lands, while the selection of the lands and the notification to Mills are shown to have been in writing, but no failure upon his part to make the selection is specially averred; but appellee asserts that from the failure to aver a decision the presumption is that none was made. We assume this position to be correct, in considering the complaint. It is asserted in this paragraph that by these contracts appellant sold the Hendricks county land to decedent for $ 27,000.00, with the option upon his part of paying $ 17,000.00 of the purchase-price in cash, or by the transfer of the Arkansas land.
The six years' statute of limitations was pleaded, and the demurrer to it for want of facts overruled. This constitutes the only error argued in this court.
This plea is only sustainable upon one of two theories. 1st, that the complaint is bad; second, that the contract set up by this complaint is a parol contract, and, therefore, the six years' statute applies.
The appellant's principal argument is devoted to the proposition that the contract is an absolute sale of the Hendricks county land, for $ 27,000.00, with an option, or privilege, on the part of Shirk to pay either in money or Arkansas land.
Were we able to agree with this proposition, the way before us would be cleared of many difficulties. We are unable, however, to see how it is possible to give to the contract under consideration this construction. It was, as we view it, simply a contract for the exchange of lands, with certain prices affixed to each, the difference to be paid in money. We think it apparent that Shirk was entitled to fill his contract by the conveyance of Arkansas land, and Lingeman was entitled to demand the land. Whether or not the contract sufficiently describes the Arkansas land to make it enforceable, is the serious question with which we are confronted.
It is undoubtedly the law, as claimed by counsel for appellee, that a contract partly written and partly verbal, is a parol contract, and, therefore, when relating to the sale of land, unenforceable by reason of the statute of frauds. Rainbolt v. East, Admr., 56 Ind. 538; Board, etc., v. Shipley, 77 Ind. 553; Caylor v. Roe, 99 Ind. 1; Weaver v. Shipley, 127 Ind. 526, 27 N.E. 146.
It is also true, that a contract for the sale of lands should describe the lands with such certainty as will enable the land to be ascertained. Pulse v. Miller, 81 Ind. 190; Weaver v. Shipley, supra.
But it has been held that a "deed will not be declared void for uncertainty as long as it is possible, by any reasonable rules of construction, to ascertain from the description found therein what property it was intended to convey." McDonald v. Payne, 114 Ind. 359, 16 N.E. 795; Colton v. Lewis, 119 Ind. 181, 21 N.E. 475.
It is undeniable that an agreement to convey "3,500 acres of land in Craighead, Poinsett or Clayton counties, in Arkansas," or in either of them, would be insufficient and the contract unenforceable. Baldwin v. Kerlin, 46 Ind. 426; Miller v. Campbell, 52 Ind. 125; Tewksbury v. Howard, 138 Ind. 103, 37 N.E. 355.
Counsel for appellee argue that such is the legal effect of this description, but we do not so regard it. The writing provides that Lingeman is to have 2,560 acres in Craighead county, Arkansas, or 3,840 in Poinsett county, he to select them from lands in those counties owned by Shirk. Such a contract, where the lands are to be thus selected by one party, is a valid and enforceable contract, upon the ground that although the lands are not specifically described, there is a definite mode of ascertaining them prescribed in the contract, and thus that which would otherwise be uncertain may be made certain. Carpenter v. Lockhart, 1 Ind. 434; Cheney v. Cook, 7 Wis. 413; Washburn v. Fletcher, 42 Wis. 152; Roehl, Admr., v. Haumesser, 114 Ind. 311, on p. 315, 15 N.E. 345; Colerick v. Hooper, 3 Ind. 316; Baldwin v. Kerlin, supra.
Here, however, the contract goes one step further, and introduces an additional element of uncertainty, because it is provided that Lingeman may also select land in the Clayton county island, in which event he is to allow the difference in value between that and the Craighead county land, Mills to decide the difference in value.
Is the contract unenforceable because of the uncertainty introduced into it by this provision?
Counsel argue that the selection was as uncertain as the contract, because the land taken in Poinsett county was described simply as 1,703 acres. Since the contract was, as to this land, fully executed, it was thereby taken out of the operation of the statute, Overstreet v. Rice, 4 Bush 1, so that we are left to deal only with the Clayton county land. We find the parties then in this position: Lingeman has conveyed his land to Shirk, as agreed on, Shirk has paid $ 10,000.00 boot-money and conveyed nearly one-half of the Arkansas land as agreed, but Lingeman still lacks a little over one-half. Is he then, as to this one-half, remediless under his contract? Had Mills determined the relative value of the lands in the two counties, then the number of acres would have been determined and the land to which Lingeman was entitled definitely ascertained. But this he has not done.
The rule was established as early as Justinian's day, that if A agrees to sell to B certain lands at a price to be fixed by C, and C fails to fix the price, the contract fails. Inst. Lib. 3 Lit. 23 par.
This precedent the English court followed in Milnes v....
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