Noland v. Haywood, 1803

• Decision Date: 05 July 1933
• Docket Number: 1803
• Citation: 46 Wyo. 101,23 P.2d 845
• Parties: NOLAND v. HAYWOOD
• Court: Wyoming Supreme Court

23 P.2d 845

46 Wyo. 101

NOLAND v. HAYWOOD

No. 1803

Supreme Court of Wyoming

July 5, 1933

APPEAL from the District Court of Sheridan County, James H. Burgess Judge.

Suit by Fred Noland against Edna E. Haywood. From a judgment for defendant, plaintiff appeals.

Affirmed.

The cause was submitted for the appellant on the brief of Louis J. O'Marr, of Sheridan, Wyoming.

The trial court held that the memorandum of agreement was too indefinite as to description of the lands to support an action of specific performance. Plaintiff's allegations were that the Haywood ranch lies on Clear Creek in Sheridan County, Wyoming; that it consists of 280 acres, less rights of way, and is located in Township 54 North Range 79 West and is the only ranch owned by defendant on Clear Creek in that township; that the ranch was shown plaintiff by defendant in December, 1931. The conflict found in the decisions in cases of this kind, seems to be based upon the application of settled rules of law to particular instances. We believe the memorandum in the present case is sufficient to sustain specific performance. Bogard v. Barhan (Ore.) 96 P. 673; Burns v. Witter (Ore.) 108 P 129; 36 Cyc. 593; 58 C. J. 942. The weight of authority seems to be that where it is shown the vendor owns but one parcel answering the description contained in the memorandum, the courts are inclined to uphold a meagre description of the property. Hurley v. Brown (Mass.) 96 Am. Dec. 671; Hampe v. Sage (Kans.) 109 P. 406; Bacon v. Leslie (Kans.) 31 P. 1066. The agreement in this case is much more clear in its descriptions than in the cases above referred to. All that was necessary to locate the land beyond all question of doubt, was the ownership. But the ownership was admitted by defendant. There was delivered with the agreement an abstract as a part of the deal, which contained a description of the property set forth in a copy of a deed therein by which she acquired title. We respectfully submit that the contract in question is sufficient to comply with the statute of frauds, and in view of the proof should have been specifically performed.

The cause was submitted for respondent on the brief of John G. Hutton and P. S. Garbutt of Sheridan Wyoming.

Respondent objected to the validity of the alleged memorandum agreement throughout the trial. The memorandum is insufficient under the statute of frauds. Chapter 47, Section 101, R. S. 1931; 27 C. J. 267-270; Pottery Co. v. Onken Bros. 26 Wyo. 287; Mead v. Leo Sheep Co. 32 Wyo. 313. Defects of the memorandum cannot be cured by additional evidence. 22 C. J. 1070; Thurston v. Ludwig, 6 O. S. R. 1; Hines v. Willcox (Tenn.) 54 Am. S. R. 8233; Horn v. Hansen (Minn.) 22 L. R. A. 617; McNeil v. Chamber of Commerce (Mass.) 13 L. R. A. 559; Dunn v. Gilbert, 36 Wyo. 249; Freeburgh v. Lamoureux, 15 Wyo. 22; Ellis v. Treat, 236 F. 122; Metcalf v. Hart, 3 Wyo. 513. To enforce the memorandum as an agreement by specific performance, would be a violation of the rule of mutuality. Pantages v. Grauman, 191 F. 317; Ryan v. McLane, 50 L. R. A. 514; A. L. R. 1057; Merrill v. Rocky Mt. Cattle Co. 26 Wyo. 219; Frank v. Stratford-Handcock, 13 Wyo. 37. The cases cited by appellant are readily distinguishable upon the facts.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

The District Court of Sheridan County declined to order the specific performance of an alleged contract for the exchange of certain property at the suit of the plaintiff and appellant, and, upon the close of his evidence, sustained the defendant's and respondent's motion for judgment in her favor. In the judgment thereafter entered, it was found by the court, among other things, that

"the plaintiff's said cause is based upon an alleged agreement in writing made between plaintiff and defendant for the sale of real estate; that said alleged agreement in writing is insufficiently supported by a memorandum so indefinite and uncertain and incomplete in its terms that the intent of said memorandum is not clearly ascertained; and that the cause alleged by the plaintiff is within the operation of the Statute of Frauds, being Section 101 of Chapter 47 of the Revised Statutes of Wyoming, 1931; and that the said memorandum is insufficient to satisfy the said Statute of Frauds and is void under such statute."

It was accordingly adjudged and decreed that the prayer of the plaintiff's petition for the relief aforesaid, in every particular be denied. This proceeding, by direct appeal, has been prosecuted to review the record and this judgment in the case.

The written agreement relied on by the plaintiff reads as follows:

"Sheridan, Wyo., Dec. 2, 1931.

This Agreement Made between Edna E. Haywood and Fred Noland.

Edna E. Haywood agrees to furnish and deliver to Fred Noland Clear Title to 280 acres of Land on Clear Creek in Township 54--Range 79 To be free from all debts Except $ 37.62 to E. K. Morrow for fence repair Which is to Be Paid by Fred Noland.

Fred Noland Agrees to deliver a Clear Title to Property located in Sheridan, Wyo. at 9-N-Vale Ave. Including all furniture title to be Clear from all debts. Also to deliver 375 shares of R and D Oil stock.

Both Places Mentioned are in Sheridan Co. And Each party are to pay last 1-2 of taxes for year 1931 on places purchased.

This agreement Agreed to By Both Parties.

(Signed)

Edna E. Haywood, Fred Noland"

The controlling question argued and submitted for determination is whether the written memorandum of the parties quoted above sufficiently described the properties to be exchanged, so as to comply with the requirements of our Statute of Frauds (Wyo. Rev. St. 1931, § 47-101) and to permit the specific performance of the agreement undertaken to be evidenced thereby. The section referred to, so far as material here, declares that:

"In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith. * * *

Fifth--Every agreement or contract for the sale of real estate, or the lease thereof, for more than one year."

In aid of our solution of this question, it may be observed that this court has already said, in Freeburgh v. Lamoureux, 15 Wyo. 22, 33, 85 P. 1054, 1055, that:

"To warrant a court of equity in requiring the specific performance of a contract, the contract 'must be so certain that the court can require to be done the specific thing agreed to be done.' (Godschalk v. Fulmer, 176 Ill. 64, 51 N.E. 852). And where the contract is for the conveyance of land the description 'must be sufficient to fix and comprehend the property which is the subject of the transaction, so that with the assistance of external evidence, the description, without being contradicted or added to, can be connected with and applied to the very property intended and to the exclusion of all other property.' (Ryan v. U.S. 136 U.S. 68, 10 S.Ct. 913, 34 L.Ed. 447). But external evidence is inadmissible for the double purpose of describing the land and then applying the description. (Halsell v. Renfrow, 14 Okla. 674, 78 P. 118 (2 Ann. Cas. 286), and cases there cited.)"

Speaking of the nature of the memorandum required, in order to comply with the provisions of the statute of frauds relative to sales of personal property (Wyo. Comp. St. 1910, § 3752; Wyo. Rev. St. 1931 § 98-202), it was said, in Burley-Winter Pottery Co. v. Onken Bros. & West Co., 26 Wyo. 287, 291, 292, 183 P. 747, 749, that:

"The correct rule for the construction of such memorandum, as we understand it to be, is well stated in Waul v. Kirkman, 27 Miss. 823, where it is stated: 'The rule upon this point is well settled to be that the memorandum, in order to satisfy the statute, must contain the substantial terms of the contract, expressed with such certainty that they may be understood from the contract itself, or some other writing to which it refers, without resorting to parol evidence. * * * And when reference is made in the memorandum to another writing, it must be so clear as to prevent the possibility of one paper being substituted for another.'" Professor Williston asserts (1 Williston on Contracts, § 578, p. 1110) that "the American courts have required greater particularity in descriptions of real estate than in descriptions of goods," under the necessary memorandum clauses of the statute of frauds.

The English cases appear to exact less certainty in the description of real estate in the written note of the contract provided for by the statute mentioned. In Plant v. Bourne, 2 L. R. Ch. Div. (1897) 281, where it appeared that A agreed to sell and B to buy "24 acres of land, freehold, and all appurtenances thereto, at Totomslow, in the Parish of Draycott, in the County of Stafford," it was held, reversing the trial judge, that parol evidence was admissible to show what was the subject of the contract. The cases of Ogilvie v. Foljambe, 3 Meriv. 53, and Shardlow v. Cottrell, 20 Ch. 90 were relied on as supporting the conclusion reached. There may be some doubt whether the first of these decisions really does so.

The courts of Massachusetts seem inclined to favor the liberal English view, in allowing the introduction of parol evidence to clear up an uncertainty in the description of land sale contracts, as against the mandate of the statute of frauds and in Hurley v. Brown, 98 Mass. 545, 96 Am. Dec. 671, it was held that a memorandum for the sale of "a house and lot of land situated on Amity Street, Lynn, Mass." described the property with sufficient certainty to satisfy the statute aforesaid and to enable the contract to be specifically performed. Parol evidence was deemed admissible to apply this description to a house and lot...