Meramec Portland Cement & Material Co. v. Kreis
| Decision Date | 14 July 1914 |
| Citation | 168 S.W. 1148,261 Mo. 160 |
| Parties | MERAMEC PORTLAND CEMENT AND MATERIAL COMPANY, Appellant, v. ROBERT KREIS |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon John W McElhinney, Judge.
Affirmed.
Collins Barker & Britton and C. K. Rowland for appellant.
(1) The memorandum in this case is sufficient. Sec. 2783, R. S. 1909; 20 Cyc. 253; Springer v. Kleinsorge, 83 Mo. 157. (2) Memorandum of a contract of sale and conveyance of land although signed only by the party to be charged when sufficiently clear and certain in its terms, affords a competent basis for a suit for specific performance. Mastin v. Grimes, 88 Mo. 478; Moore v. Thompson, 93 Mo.App. 348; Cable v. Jones, 179 Mo. 606; Real Estate Co. v. Spelbrink, 211 Mo. 671. (3) While parol evidence is not admissible to piece out the memorandum, it is clearly admissible for the purpose of identifying the property described in the memorandum if reference is made to some "external standard," by which the property can be located. Darnell v. Lafferty, 113 Mo.App. 301; Sailor v. Gilfillan, 73 Mo.App. 152; Springer v. Kleinsorge, 83 Mo. 157; Smith v. Wilson, 160 Mo. 666; Bollinger County v. McDowell, 99 Mo. 637; Black v. Crowther, 74 Mo.App. 483; Tetherow v. Anderson, 83 Mo. 97; Cravens v. Pettit, 16 Mo. 210. (4) Where the memorandum is sufficient to meet the requirements of the Statute of Frauds, the acceptance may be oral. Waterman Spec. Perf., sec. 137; Gradle v. Warner, 140 Ill. 123; Brown Stats. Frauds, sec. 345a; Farwell v. Lowther, 18 Ill. 252; Black v. Crowther, 74 Mo.App. 480. (5) It is not necessary that the memorandum upon which a party may be charged shall be a single document. Such memorandum may be made up of a number of different papers, such as letters, etc., where there is a sufficient reference made to identify and connect them, and one or more of them is signed by the party to be charged. Peycke Bros. v. Ahrens, 96 Mo.App. 456; Cunningham v. Williams, 43 Mo.App. 629; Moore v. Mountcastle, 61 Mo. 424; Gurley-Burnham Co. v. Capen, 23 Mo.App. 301; Heideman v. Wolfstein, 12 Mo.App. 366; Swallow v. Strong, 85 N.W. 942; Charlton v. Real Estate Co., 69 L. R. A. (N. J. Eq.) 394. (6) Even where the memorandum attempts to make time of the essence of the contract, by fixing a definite date for the acceptance of the offer, if the parties continue to deal together after the expiration of the time fixed, this amounts to a waiver of the element of time. 1 Story Eq. Jur., sec. 776; Mastin v. Grimes, 88 Mo. 485; Melton v. Smith, 65 Mo. 322; Mix v. Baldac, 78 Ill. 217.
George M. Block and Frank B. Coleman for respondent.
The memorandum in this case is not a sufficient compliance with the Statute of Frauds to constitute a binding contract between appellant and respondent or entitle appellant to any relief. (1) Because there was no sufficient description of the premises sought to be purchased. Sec. 2783, R. S. 1909; Fox v. Courtney, 111 Mo. 147; King v. Wood, 7 Mo. 389; Whaley v. Hinchman, 22 Mo.App. 483; Schroeder v. Taaffe, 11 Mo.App. 267; Weil v. Willard, 55 Mo.App. 376; Johnson v. Fecht, 94 Mo.App. 605; Johnson v. Fecht, 185 Mo. 335. (2) Because there is no sufficient description of the purchaser. Rucker v. Harrington, 52 Mo.App. 481; Toms v. Bayse, 65 Mo.App. 30; Carrick v. Mincke, 60 Mo.App. 140. (3) Because there is no sufficient certainty as to the terms of the alleged contract. Kelly v. Thuey, 143 Mo. 435; Ringer v. Holtzclaw, 112 Mo. 522; Wendover v. Baker, 121 Mo. 290; Ice Co. v. Heinze, 102 Mo. 245; Mastin v. Hally, 61 Mo. 196; Taylor v. Williams, 45 Mo. 80; Boyd v. Paul, 125 Mo. 14. (4) Because the memorandum being scant in measure under the Statute of Frauds it cannot be pieced out by verbal additions. Boyd v. Paul, 125 Mo. 14; Ringer v. Holtzclaw, 112 Mo. 519; Kelly v. Thuey, 143 Mo. 422; Reigert v. Coal & Coke Co., 217 Mo. 160.
Plaintiff corporation, by action for specific performance, seeks to compel defendant to convey to it a tract of land situated in St. Louis county, Missouri, described as follows:
"Part of the southwest quarter of section 15 and of the northwest quarter of section 22 in township 44 north of range 4 east, containing 39 acres more or less, and being particularly bounded and described as follows, to-wit: Commencing at the point where the south boundary line of the present right of way of the Missouri Pacific Railroad intersects the east boundary line of the southwest quarter of section 15 aforesaid, and running thence in a westwardly direction with the south boundary line of said right of way to the intersection thereof with the west boundary line of 'Castle Woods' subdivision, as per plat thereof recorded in a plat book No. 9, at page 24, in the recorder's office of the city of St. Louis; thence running south with the west boundary line of said Castle Woods to the middle of the main channel of the Meramec River; thence down the middle of the main channel of said stream, with the meanders thereof, to the east boundary line of the southwest quarter of said section 15, and thence north with the east boundary of said southwest quarter of said section 15 to the place of beginning; bounded on the north by the south line of the present right of way of the Missouri Pacific Railroad, on the south by the middle of the channel of the Meramec River; on the east by the east line of the southwest quarter of section 15 aforesaid, and on the west by the west line of the subdivision known as 'Castle Woods' as per plat thereof recorded as aforesaid."
On May 31, 1908, defendant delivered to one Lewis (who was then in the employ of the plaintiff), the following unsigned paper:
Said Lewis delivered this paper to Mr. Boyd, the vice-president and general manager of plaintiff company. On June 2, said Boyd wrote to defendant the following letter:
"Meramec Portland Cement & Material Co.
St. Louis, Mo., June 2, 1908.
Mr. Robert W. Kreis,
Jennings, Missouri.
Dear Sir:
Please call at the office at your earliest possible convenience to talk over the matter of purchasing the forty-some-odd acres of bottom land you have adjoining us at Sherman, Missouri.
On June 3, defendant wrote to said Boyd in answer to the above letter as follows:
St. Louis, Mo.
Dear Sir:
Received your letter dat. June 2. I am unable to see you, as our Works are going to close down for 10 days for repair, commencing next Monday and we have to work overtime to finish by Saturday eve. I have given Mr. Lewis the 4 diff. propositions that I would accept last Sunday and told him, that they were good untill Sat. June 6th after which time I would turn the business over to Lawyer Mr. Block & Comp. in the Carrolton Bldg, Mr. Block wanted to take it right away, but I did not like to do it untill I heard from your Comp. It does not cost me anything, as they will handle it on a Commission of what they get over $ 5000. I will under the circumstances extend the time untill Monday eve, June 8th, but in the meantime let me know, which proposition you will accept. As there is no use to argue any points or price, as I have set them down and intend to stick to them. If you come to any conclusion let me known and I will come Monday with my Lawyer and fix it up. If any one of your Comp. want to see me, you can find me at M. A. Seed Dry Plate Works, Woodland, Mo., on the Wabash R. R. between 12 and 1 o'clock. I think it is unnecessary to mention that it will be to your Comp. benefit to have it settled on or before June 8, 1908.
I remain
Resp. yours, Robt. Kreis."
On June 2, defendant wrote to said Lewis the following postal card.
St. Louis, Mo.
Dear Sir:
I hardly think it necessary to see you as you have the propositions to submit to the Comp. I am positive the Comp. knows all about it. If they are smart they will loose no time to write me about the offers which I numbered, as Saturday is the last day & after that I have nothing to do with it any more.
On June 10, defendant wrote to said Lewis the following postal card:
St. Louis, Mo.
Dear Sir:
Said postal card was addressed to " ...
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