Morrison v. Dailey

• Court: Texas Supreme Court
• Writing for the Court: Gaines
• Citation: Morrison v. Dailey, 6 S.W. 426 (Tex. 1887)
• Decision Date: 22 November 1887
• Parties: MORRISON v. DAILEY.

6 S.W. 426

MORRISON v. DAILEY.

Supreme Court of Texas.

November 22, 1887.

Appeal from district court, Ellis county; ANSON RAINEY, Judge.

C. L. Edwards, for appellant.

GAINES, J.

Appellant brought this suit in the court below to enforce the specific performance of a contract for the sale of land, which was evidenced by the following memorandum in writing: "LANCASTER, June 28, 1887. Received from H. Morrison forty dollars on my place, known as the `James Perry Tract of Land,' which tract I have sold to him for forty-five hundred dollars, part cash, and the balance to bear interest at ten per cent. per annum until paid. [Signed] Mrs. N. B. DAILEY." The petition described, by metes and bounds, the lands alleged to have been sold, and set forth specifically the terms of the contract on his part. It also averred a compliance on his part, by a tender of money and promissory notes, according to the terms alleged; and a refusal to execute conveyance on part of defendant. Defendant demurred to the petition upon the ground, among others, that the memorandum was not in compliance with the statute of frauds — First, because the description of the land is insufficient; and, second, because the writing does not show the terms of the contract. The court sustained the demurrer upon this ground, and plaintiff, declining to amend, dismissed the petition. In this there was error. The description of the land is sufficient. All that is required is that the premises shall be so described that they can be definitely ascertained. By determining what land defendant owned at the date of the contract, which was known as the "James Perry Tract," the property sold could be identified with certainty. So far, all the authorities are agreed. Ragsdale v. Mays, 65 Tex. 255; Fulton v. Robinson, 55 Tex. 401; Bitner v. Land Co., 67 Tex. 341, 3 S. W. Rep. 301; 1 Reed, St. Frauds, §§ 409-416; Browne, St. Frauds, § 385; Pom. Spec. Perf. § 90; Wat. Spec. Perf. § 237.

Upon the question presented by the proposition in the demurrer, that the terms of the contract are not sufficiently shown in the memorandum, the decisions are in conflict. The weight of authority seems to be in favor of the rule that all the material terms of the contract should appear in the writing. Riley v. Farnsworth, 116 Mass. 225; Grace v. Denison, 114 Mass. 16; Drake v. Seaman, 97 N. Y. 230; Gault v. Stormont, 51 Mich. 636, 17 N. W. Rep. 214; Minturn v. Baylis, 33 Cal. 129; Soles v. Hickman, 20 Pa. St. 180. But the contrary rule is not without authority to support it. Ellis v. Bray, 79 Mo. 227; O'Neil v. Crain, 67 Mo. 251; Holman v. Bank, 12 Ala. 369; Johnson v. Ronald's Adm'r, 4 Munf. 77; 1 Reed, St. Frauds, § 419. The courts which held the affirmative of the question seem to base their conclusion upon the ground that, by the use of the word "agreement" or of the word "contract," the statute meant all stipulations agreed to by the parties. On the other hand, it is considered by some of the authorities that the object of the statute, so far as lands are concerned, was to abrogate parol titles, and that this was sufficiently accomplished by a memorandum of the promise to convey the land, to be signed by the vendor, without requiring the other terms of the agreement to be stated. We need not decide which is the better reason, for we regard it as now settled, in this state, that all the...