Osborne v. Moore

• Decision Date: 31 January 1923
• Docket Number: (No. 382-3564.)
• Citation: Osborne v. Moore, 247 S.W. 498 (Tex. 1923)
• Parties: OSBORNE v. MOORE.
• Court: Texas Supreme Court

Page 498

247 S.W. 498

OSBORNE v. MOORE.

(No. 382-3564.)

Commission of Appeals of Texas, Section A.

January 31, 1923.

Appeal from Court of Civil Appeals of Second Supreme Judicial District.

Suit by William Osborne against John T. Moore. Judgment for defendant, and plaintiff appealed to the Court of Civil Appeals, which certified questions to the Supreme Court. Questions answered.

S. D. Goswick and Penix, Miller, Perkins & Dean, all of Mineral Wells, for appellant.

Gross, Gross & Zively and Ritchie & Ranspot, all of Mineral Wells, for appellee.

GALLAGHER, P. J.

This is a suit by William Osborne, as plaintiff, against John T. Moore, as defendant, for specific performance of a verbal contract by which defendant agreed to sell and plaintiff agreed to buy a block of land, together with a six-room house thereon, situated on North Oak street, in the city of Mineral Wells, and particularly described as block 11 of the Wiggins addition to said city. The defendant, among other defenses, invoked the statute of frauds. The writing offered by plaintiff as compliance with the requirements of said statute was a check, which, together with the memorandum thereon, reads as follows:

"Mineral Wells, Texas, March 3, 1919. No. ____. The Bank of Mineral Wells 88-241 (Unincorporated): Pay to John T. Moore or order, $100.00, one hundred and no/100 dollars. To bind deal on 1 block and 6-room house on North Oak St. Wm. Osborne. Accepted. Hunter & Graves, by M. D. Hunter, Agent."

The plaintiff, in connection with said check, offered evidence of M. D. Hunter that he was the duly authorized agent of the defendant for the sale of said property; that he sold the same to plaintiff, and accepted said check from plaintiff to bind the trade and as earnest money thereon. The defendant objected to the introduction of said check in evidence on the following grounds:

"That the same was insufficient as a contract in writing for the sale and purchase of the real estate; that said instrument does not show that it was given in a transaction involving the sale and purchase of property nor does it sufficiently describe the property nor give its location; and that said instrument is too vague, uncertain, and indefinite to form a basis of plaintiff's suit for specific performance."

The trial court sustained the objection and refused to admit the check in evidence and rendered judgment for the defendant. Plaintiff appealed. The Court of Civil Appeals, being unable to entirely agree upon the law of the case, certified to the Supreme Court the following question:

"Did the trial court err in excluding said check and written memorandum?"

The statute of frauds of this state provides that no action shall be brought upon any contract for the sale of real estate or the lease thereof for a longer term than one year, unless the promise or agreement upon which the same is brought or some memorandum thereof shall be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized. Rev. St. art. 3965.

It is the general rule that, to constitute compliance with the provisions of this statute, the writing, whether a formal contract or a mere memorandum, must contain the essential terms of a contract, expressed with such certainity that it may be understood without recourse to parol evidence to show the intention of the parties. Jones v. Carver, 59 Tex. 293, 295; 25 R. C. L. p. 645, § 276; 20 Cyc. p. 258. This rule, however, as construed by our Supreme Court, does not require that the writing shall contain all the stipulations agreed to by the parties, and the writing will be deemed sufficient in a suit against the seller for specific performance, if it be signed by him and show an agreement to sell or convey the particular land involved in the suit. Morrison v. Dailey (Tex. Sup.) 6 S. W. 426.

No part of such contract is more essential than the description by which the subject-matter thereof is to be identified. With reference to the description in such cases, our Supreme Court has uniformly held that the writing must furnish in itself, or by reference to some other writing, the means or data by which the particular land to be conveyed can be identified. Jones v. Carver, 59 Tex. 293, 295; Patton v. Rucker, 29 Tex. 402, 409; Johnson v. Granger, 51 Tex. 42, 44, 45; Zanderson v. Sullivan, 91 Tex. 499, 503, 44 S. W. 484; Coker v. Roberts, 71 Tex. 597, 601, 602, 9 S. W. 665.

We do not think the check under consideration meets either of these requirements. It certainly does not contain an express promise to sell or convey any land, nor do we think such promise is necessarily implied by the language used in the memorandum thereon. A "deal" between two parties includes any transaction of any kind between them. 17 C. J. 1153. When applied to a transaction concerning a house and block, it does not necessarily imply an agreement to sell or convey the same. The indorsement, "to bind deal," may refer to an agreement to sell or convey, or it may refer to an entirely different kind of transaction, such, for instance, as an agreement to rent or lease the property. The receipt held to constitute a sufficient compliance with the statute in Morrison v. Dailey, supra, recited that the signer had sold the property to the party to whom it was given. The receipt held a sufficient compliance with the statute in Fulton v. Robinson, 55 Tex. 401, recited that the money for which it was...