Welsh v. Williams

• Decision Date: 19 December 1904
• Citation: Welsh v. Williams, 85 Miss. 301, 37 So. 561 (Miss. 1904)
• Court: Mississippi Supreme Court
• Parties: WILLIAM WELCH v. OKAY WILLIAMS ET AL

37 So. 561

85 Miss. 301

WILLIAM WELCH v. OKAY WILLIAMS ET AL

Supreme Court of Mississippi

December 19, 1904

FROM the chancery court of Noxubee county, HON. JAMES F. MCCOOL Chancellor.

Welch the appellant, was complainant, and Mrs. Williams and others the appellees, were defendants in the court below. From a decree sustaining the demurrer of defendants to the bill of complaint and dismissing the suit the complainant appealed to the supreme court. The opinion of the court states the facts of the case.

Decree affirmed.

J. E Rives, for appellant.

The allegations of the bill in this cause show that the agreement for the sale of this land was certain, mutual, not hard nor unconscientious, and that there was a valuable consideration for the contract; appellant having gone to the expense of obtaining an abstract of title and refusing to rerent the property which he was at the time occupying as a tenant under which circumstances the bill is certainly maintainable.

This is one more instance in which demurrers have been sustained by the court where the pleadings demurred to charge fraud and where there were no answers denying the allegations of fraud, although this honorable court has from time to time repeatedly declared that a demurrer to a bill charging fraud will be overruled unless there is some answer denying the allegations of fraud.

The chancellor was misled by the case of Stigler v. Jaap, 83 Miss. 351 (s.c., 35 South. Rep., 948). He held that case to apply to the case at bar, while the facts in the two cases are not at all similar.

In this case the contract was a contract for the sale of the lot in Shuqualak, evidenced by the written correspondence of Mrs. Williams and appellant, so that this contract is not obnoxious to the statute of frauds, but is enforceable if any contract is enforceable for the sale of land.

George Richardson, for appellees.

The bill in every instance alleges alternative propositions, and the agreements, as the court can readily see, are insufficient in any degree of certainty, and we submit that if the writings were as uncertain as the allegations of the bill, no court could enforce specific performance. A court of equity will only decree specific performance where the contract is in writing, is fair and certain in all its parts, and is for an adequate consideration, and capable of being performed, but not otherwise. Boman v. Cunningham, 78 Ala. 48. It must be reasonably certain as to its subject-matter, its stipulations, its purposes, its parties, and the circumstances under which it was made. 3 Pomeroy Eq. Jur., sec. 1405.

If the note or memorandum (or correspondence) shows only a treaty pending, and not a contract concluded, or if it annex any conditions or any variations, it has no effect as a memorandum to bind the parties from whom it proceeded. Phillips v. Adams, 7 Ala., 376.

No specific performance of the contract can be decreed in equity unless the contract be actually concluded and certain as to all of its parts. If the matter rest in treaty, or if the agreement is, in any material particular, uncertain or indefinite, equity will not interfere. Frye on Specific Performance, sec. 164 (Ib., 202).

In this instance there is no certainty with reference to the terms of the contract, no consideration passing from appellant to Mrs Williams. The contract itself...