Pipkin v. James

• Decision Date: 30 April 1839
• Citation: 20 Tenn. 325
• Parties: PIPKIN v. JAMES.
• Court: Tennessee Supreme Court

20 Tenn. 325

PIPKIN

v.JAMES.

Supreme Court of Tennessee.

April, 1839.

Shadrach Pipkin instituted this action of assumpsit against William R. James, on September 20, 1838, in the circuit court of Hardeman county, to recover the consideration money which he had paid for an ice-house and lot in the town of Bolivar. It was tried at the March term, 1839, on the plea of non assumpsit, before Judge Barry, and a verdict and judgment rendered for the defendant. The plaintiff appealed in error to this court. The facts are fully set forth in the opinion of the court.

W. C. Dunlap, for plaintiff; D. Fentress, for defendant.

Turley, J., delivered the opinion of the court.

This is an action brought by the plaintiff to recover a sum of money paid as the consideration of the purchase of an ice-house and lot, upon two grounds: 1st, that the contract is void by the operation of the statute of frauds and perjuries; 2d, that the defendant had not, at the time of the sale, nor yet has, any title to the property sold.

It appears from the proof that the plaintiff and one R. Oliver had purchased from the defendant a quantity of groceries and an ice-house and lot, and that R. P. Neily, at the request of both parties, made out an invoice or memorandum of the different articles, which was headed with the following words: “Invoice of articles purchased by S. Pipkin and R. Oliver of Wm. R. James, this 29th August, 1836.” After enumerating a variety of articles, the concluding item in the invoice is in the words and figures following: “One ice-house and lot, $140.””” This is the only note or memorandum of the contract signed, either by the parties or any other person authorized by them. A few days after this contract was made R. Oliver became dissatisfied with it, and Isaiah Flinn agreed to take his place, and the notes of Pipkin and Flinn were executed to the defendant for the purchase money, which was paid before the commencement of this action. It also appears from the proof that the defendant had not at the time of the contract, or at the commencement of this suit, any title whatever to the lot of ground upon which the ice-house was built, and had refused to give any bond binding himself to convey the same to the plaintiff. Upon this state of facts the two questions are presented for the consideration of the court:

1. Is the contract for the purchase of the ice-house and lot void by the operation of the statute of frauds and perjuries? We think it is. The statute provides that no action shall be brought upon any contract for the sale of lands, tenements, or hereditaments, or in the making any lease thereof for a longer term than one year, unless the promise or agreement upon which said action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person by him thereunto lawfully authorized. It is contended, for the defendant, that the entry made at the request of the parties in the inventory of articles bought by the plaintiff is such a note or memorandum of the contract as is required by the statute. We do not think so; because, in the first place, it is proven that the inventory was not intended by the parties as a note or memorandum of the contract, but merely as a statement of the amount of the different articles purchased, with the view of ascertaining the aggregate sum for which the notes were to be executed; and because, secondly, if it were intended as a note or memorandum of the contract, it is void for uncertainty, both as to the terms of the contract and the description of the property. “The note or writing must specify the terms of the agreement, for otherwise all the danger of perjury which the statute intended to guard against would be let in.” Sug. Vend. 89.

A writing acknowledging the reception of a sum of money, being the cash part of the consideration on a sale of land to the plaintiff, without saying more, is not such memorandum as will take the case out of the statute of frauds and perjuries. 4 Bibb. 566.

“A memorandum of the sale of lands, to be effectual, must not only be signed by the party to be charged, but must contain the substantial terms of the contract in itself, or in some...