Miller v. Burt

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: SHELDON, J.
• Citation: Miller v. Burt, 196 Mass. 395, 82 N.E. 39 (Mass. 1907)
• Decision Date: 16 October 1907
• Parties: MILLER v. BURT et al.

196 Mass. 395

82 N.E. 39

MILLER v. BURT et al.

Supreme Judicial Court of Massachusetts, Franklin.

October 16, 1907

The memorandum referred to in the opinion reads as follows:

'Zoar, Mass., Feb. 26, 1907.

'Received of A. F. Truesdell ten dollars in part payment of lot sold to him; he to pay balance, forty dollars, on delivery of the deed.

D. W. Burt.'

COUNSEL

Hugh E. Adams and Homer Sherman, for plaintiff.

William A. Davenport, for defendants.

OPINION

SHELDON, J.

The demurrer rightly was sustained; and, as the plaintiff apparently did not desire to make any amendment, the bill properly was dismissed.

1. It is abundantly settled by the decisions of this court that the memorandum signed by the defendant was not sufficient to take the case out of the statute of frauds. It utterly failed to describe or identify in any manner, or by any reference. the land intended to be conveyed. Whelan v. Sullivan. 102 Mass. 204. There was no such fraud or part performance averred as would entitle the plaintiff to avoid the statutory bar. Glass v. Hulbert, 102 Mass. 24, 3 Am. Rep. 418; Harrell v. Sonnabend, 191 Mass. 310, 77 N.E. 764. Nor was there any averment that the land which was the subject of the bargain was the only land owned by the defendant, so as to bring the case within the rule stated in Doherty v. Hill, 144 Mass. 465, 467, 11 N.E. 581. See the cases there cited.

2. It sufficiently appears by the bill that the agreement between the parties was an oral one, and that no written memorandum except the one annexed to the bill was relied on by the plaintiff. This affords ground for demurrer in equity. Compbell v. Brown, 129 Mass. 23; Ahrend v. Odiorne, 118 Mass. 261, 19 Am. Rep. 449. It may be that if there had been no demurrer and if the statute of frauds had not been set up in avoidance of the action (see Harrell v. Sonnabend, 191 Mass. 310, 77 N.E. 764; Livingston v. Murphy, 187 Mass. 315, 318, 72 N.E. 1012, 105 Am. St. Rep. 400), the defendant might have put in parol evidence to show that the defendant owned no other land than that bargained for; but no such case is now before us.

The decree sustaining the demurrer and dismissing the bill must be affirmed.

So ordered.