Montgomery v. Graves

• Citation: 191 S.W.2d 399,301 Ky. 260
• Parties: MONTGOMERY et al. v. GRAVES et al.
• Decision Date: 21 December 1945
• Court: Kentucky Court of Appeals

191 S.W.2d 399

301 Ky. 260

MONTGOMERY et al. v. GRAVES et al.

Court of Appeals of Kentucky

December 21, 1945

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division; Lawrence F. Speckman, Judge.

Action by John W. Graves and his wife against Robert E. Montgomery and his wife, for specific performance of a contract to convey property and for damages. From a judgment for plaintiffs, defendants appeal.

Affirmed.

S. J. Stallings and Kenneth J. Newman, both of Louisville, for appellants.

J. W Clements, of Louisville, for appellees.

STANLEY Commissioner.

Robert E. Montgomery and wife made a verbal agreement with John W Graves and his wife to sell them a residence in Louisville designated as No. 554 Camden Street, for $2,000. A down payment of $800 was made and the balance agreed to be paid upon the execution of the deed. The vendors reneged and refused to convey the property, whereupon the Graves brought this suit for specific performance and damages in the sum of $10 for every day they had been and would be kept out of possession. The defendants relied upon the Statute of Frauds, pleading there was not a sufficient written contract or memorandum thereof. The trial court adjudged specific performance, but that the defendants should give only a covenant of special warranty, and awarded $1 per day damages from July 21, 1944, until the conveyance of the property. The defendants appeal.

On July 21, 1944, the vendors signed and gave their receipt to the Graves for $800 'down payment on house 554, Camden.' The next day Mr. Graves made and filed an affidavit with the Office of Price Administration (OPA), stating that he had purchased the property for $2,800, and giving the source of the $800 which had been paid. At the same time Montgomery executed the following document:

'The affiant, Robert E. Montgomery, hereby certifies that he had sold to John W. Graves the property at 554 Camden Ave.; that he has read the buyer's affidavit; has received the payment as mentioned; has not lent any part of said payment to the buyer; and does not know of any borrowing by the buyer for the purpose of making such payment.

'(Signed) Robert E. Montgomery

'Subscribed and sworn to before me this 22 day of July, 1944.

'(Signed) Antionette Jarosch

'Notary Public, Jefferson County.'

The question is whether this instrument and the receipt are sufficient to support a cause of action upon a contract for the sale of real estate. Our Statute of Frauds denies the right of action 'unless the promise, contract, agreement, representation, assurance or ratification, or some memorandum or note thereof, be in writing and signed by the party to be charged therewith, or by his authorized agent.' Kentucky Revised Statutes, 371.010. The question is sharpened to the point of inquiry whether either the receipt or affidavit is sufficient as a 'memorandum or note' of agreement to sell and convey. The deficiency, if any, lies in the omission of a definite description or identification of the property. The papers, it will be noticed, refer to no city, town or state; nor do they refer to the property as being that owned or occupied by the vendors.

The cases are many in which the question of sufficiency of the writing has been asked. The distinction or classification of the cases between the extremes is plain, but difficulty arises where a case may be put on one side or the other of the medium line.

It is helpful in the quest for the right answer to lay a foundation by recalling some of the fundamental reasons or principles upon which the statute rests and by which it has been interpreted. It is not to be forgotten that this statute, of ancient origin, which requires certain classes of contracts to be in writing, or a memorandum thereof signed, in order to be enforceable in law, is one of prevention, of protection against imposition by means of a claim of oral commitment. The original was entitled: 'An Act for Prevention of Frauds and Perjuries.' 37 C.J.S., Frauds, Statute of, § 1. The statute does not make void a parol contract of any of the classes. It but prohibits its enforcement and refuses a remedy for enforcement or breach. It requires written evidence of it. Gray v. Gray, 25 Ky. 21, 2 J. J. Marsh. 21; Zanone v. Tashgian, 231 Ky. 454, 21 S.W.2d 825. The requirement of the fourth section of the English statute (which is that we are dealing with here, paragraph (6) of KRS 371.010) is 'but to declare that, on a trial for its enforcement, no matter what the money amount, unless it includes 'the admission in writing of the party to be charged''. Wigmore on Evidence, § 2091. This, the learned author, classifies as a 'quantitative rule' of evidence, and observes that 'its evidential policy is sound.' Therefore, the statute is not primarily intended to be a shield behind which one may escape and defend himself from a just demand that he keep his contract, although it has the effect of raising such a shield.

The American Law Institute, the members of which are recognized as among the ablest jurists and lawyers of the country, has declared the law to be--not what it ought to be but what it is--upon the particular state of facts and the question we now have before us, in section 207, Restatement of the Law of Contracts . It is that the memorandum in order to make a contract enforceable must state with 'reasonable certainty' '(b) the land, goods or other subject-matter to which the contract relates.'

The comment upon the Restatement is: ' a. A written memorandum of a contract is not identical with a written contract. A written contract will indeed serve as a memorandum, but a memorandum includes also any writing which states the terms agreed upon, though not intended or adopted by the parties as a final complete statement of their agreement. The degree of particularity with which the terms of the contract, the names or descriptions of the parties must be set out cannot be reduced to an exact formula. There must be 'reasonable' certainty and there must be accuracy, but the possibility need not be excluded that some other subject-matter or person than those intended will also fall within the words of the writing.'

It is quite uniformly held that the Statute of Frauds demands a writing which itself affords a means by which the property sold can be identified, but calls for no greater certainty in the description of the subject-matter than is necessary to identify the specific property as that upon which the minds of the parties have met. It is generally regarded as sufficient if it identifies the property when it is read in the light of the circumstances of possession or ownership and of the situation of the parties when the negotiations took place and the writing was made. 49 Am.Jur., Statute of Frauds, § 348. Instances of particular descriptions held to be sufficient or insufficient are given in 49 Am.Jur. Statute of Frauds, § 352. Many of the decisions of this court upon particular instances or descriptions are collated in Moayon v. Moayon, 114 Ky. 855, 72 S.W. 33, 24 Ky.Law Rep. 1641, 60 L.R.A. 415, 102 Am. St. Rep. 303; Campbell v. Preece, 133 Ky. 572, 118 S.W. 373; Bates v. Harris, 144 Ky. 399, 138 S.W. 276, 36 L.R.A.,N.S., 154; Hall v. Cotton, 167 Ky. 464, 180 S.W. 779, L.R.A.1916C, 1124; Dailey v. Anglin, 297 Ky. 266, 180 S.W.2d 78, and other cases cited in the course of this opinion.

The rule against varying or adding to the terms of a contract by parol proof is not applicable. Evidence which is supplementary and explanatory is admissible to remove uncertainty by exposing it in the light of the circumstances. This is in accord with the maxim, 'That is certain which can be made certain.' Moayon v. Moayon, 114 Ky. 855, 72 S.W. 33, 38; 24 Ky.Law Rep. 1641; 60 L.R.A. 415, 102 Am.St.Rep. 303; Bates v. Harris, 144 Ky. 399, 138 S.W. 276, 277. The question always is, what does the incomplete memorandum cover? It is a question of designating the subject-matter or identifying that upon which the minds of the parties had definitely agreed and made evidence of it by signing a writing. Few of such writings, or even deeds, contain such specific and precise descriptions of the property that they do not require some extrinsic evidence or information to complete its identification. The courts are not in accord on the degree or kind of limitations or the character of the extrinsic evidence deemed admissible, but all quite agree that the situation of the parties and the surrounding circumstances may be shown in order that the court may be placed in the position of the parties themselves, and if the subject-matter as indicated or described in the writing can then be identified, it is enough. 49 Am. Jur., Statute of Frauds, § 349.

Our rule in Kentucky was thus expressed in Bates v. Harris, supra: 'The rule is that where the writing within itself, or by reference to other writings, contains sufficient data so that by the aid of parol evidence no question as to the intention of the parties can arise, it is sufficient. The most specific and precise description of the property requires some parol proof to complete its identification. A more general description requires more. When all the circumstances of possession, ownership, situation of the parties, and their relations to each other and to the property, as they were when the negotiations took place and the writings made, are disclosed, if the meaning and application of the writing, read in the light of those circumstances, are certain and plain, the parties will be bound by it as a sufficient written contract or memorandum of their agreement. Wood on Statute of Frauds, § 353; Mead v. Parker, 115 Mass. 413, 15 Am.Rep. 110; Hyden v. Perkins, 119 Ky. 188, 83 S.W. 128, 26 Ky. Law Rep. 1099.'

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