Michelson v. Sherman

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: DONAHUE
• Citation: Michelson v. Sherman, 310 Mass. 774, 39 N.E.2d 633 (Mass. 1942)
• Decision Date: 02 February 1942
• Parties: MICHELSON v. SHERMAN et al.

310 Mass. 774

39 N.E.2d 633

MICHELSON

v.SHERMAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 2, 1942.

Bill in equity by Harriet Michelson against James E. Sherman and another, for specific performance of an oral contract of defendants to convey to plaintiff a parcel of land. From a final decree requiring defendants to convey the land to the plaintiff, the defendants appeal.

Decree reversed, and bill dismissed.Appeal from Superior Court, Suffolk County; Buttrick, Judge.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and COX, JJ.

M. Michelson, of Boston, for plaintiff.

B. Ginsburg and W. E. Ginsburg, both of Boston, for defendants.

DONAHUE, Justice.

The plaintiff has brought this bill in equity for the specific performance of an oral contract of the defendants to convey to her a parcel of land with a dwelling house and a garage thereon. The case was tried before a judge of the Superior Court, and the evidence is reported. The judge made a finding of facts, and ordered the entry of a final decree which required the defendants to convey the premises in question to the plaintiff.

The judge made the following findings of fact: One Drake, who ‘was the duly authorized agent of the two respondents * * * as such agent entered into an oral agreement with the plaintiff to sell to her a house, garage, and a lot of land of approximately 11,000 square feet on Eliot Memorial Road in Newton standing in the name’ of the female defendant, for the sum of $3,500. Before the oral agreement of sale was made, Drake and the plaintiff met on the premises and agreed ‘that the boundary line between the land with the house and garage to be conveyed * * * and the vacant lot to be retained by the defendants was to run from the rear of the lot just outside the overhang of the roof of the garage and then along a row of willow trees on the easterly side of the driveway which leads to the garage out to Eliot Memorial Road. A view of the premises shows that to be the natural and obvious division of the land. The land had not been surveyed either by the plaintiff or the defendants and none of them knew the number of square feet in the lot containing house or in the vacant lot. Their estimate of feet was only an estimate. The overhang of the garage and the willow trees were the monuments which were intended to fix the boundary.’

Following the meeting of Drake and the plaintiff on the premises, an oral contract of purchase and sale was made, and thereafter Drake gave to the plaintiff a writing, signed by him, which read as follows: ‘$200.00 Newton, Mass., Sept. 17, '40 Received of Harriet S. Michelson, Tr. check for $200.00 as a deposit on acct. of agreed cash price of $3,500, for Sherman property with 11,000 or more sq. feet of land on Eliot Memorial Drive and numbered 15 Eliot Memorial Drive, Newton.’

However plain and complete the terms of an oral contract for the sale and purchase of real estate, it cannot be enforced against a party thereto unless, as required by the statute of frauds, he, or his agent, has signed a written memorandum which recites the essential elements of the contract with reasonable certainty. G.L.(Ter.Ed.) c. 259, § 1, Fourth. Riley v. Farnsworth, 116 Mass. 223, 225;Gardner v. Haselton, 121 Mass. 494, 495; Des Brisay v. Foss, 264 Mass. 102, 109, 162 N.E. 4;Williams v. Commercial Trust Co., 276 Mass. 508, 517, 177 N.E. 538; American Law Inst. Restatement, Contracts, § 207, Comment a. The defendants in the present case have pleaded the statute of frauds, and the burden was on the plaintiff to prove that the memorandum of the oral contract above set forth complied with the requirements of the statute. Beaver v. Raytheon Mfg. Co., 299 Mass. 218, 12 N.E.2d 807. The memorandum was not insufficient to satisfy the requirements of the statute because the time for the performance of the oral contract was not stated therein (Nickerson v. Bridges, 216 Mass. 416, 420, 103 N.E. 939), or because the defendants' agent signed his own name to the memorandum. Record v. Littlefield, 218 Mass. 483, 485, 106 N.E. 142. The question here to be considered is whether the description of the premises sold, as set out in the memorandum, is sufficiently definite to satisfy the requirements of the statute of frauds.

When a seller of land owns only one estate which answers the description given in a memorandum, that must be taken to be the estate to which the memorandum refers, and a memorandum that contains only a slight description of such an estate will satisfy the requirements of the statute of frauds. Hurley v. Brown, 98 Mass. 545, 548;Mead v. Parker, 115 Mass. 413, 414,15 Am.Rep. 110;Scanlan v. Geddes, 112 Mass. 15, 17. The description in a memorandum by the name by which an estate is commonly known in the community where it is located may meet the purposes of the statute. Ryder v. Loomis, 161 Mass. 161, 36 N.E. 836;Bradley v. Haven, 208 Mass. 300, 302, 94 N.E. 268;Noyes v. Bragg, 220 Mass. 106, 110, 107 N.E. 669. Where the words of a memorandum show on their face that they may be applicable either to one estate only, or to more than one estate, if, ‘on the existing facts, they apply only to one, then the document identifies the land; if not, it fails to do so. In every case the words used might be translated into things and facts by parol evidence. But if, when so translated, they do not ‘identify the estate intended as the only one which would satisfy the description,’ they do not satisfy the statute.' Doherty v. Hill, 144 Mass. 465, 468, ...