Wilcox v. Sonka

• Decision Date: 17 May 1909
• Citation: 119 S.W. 445,137 Mo.App. 54
• Parties: A. J. WILCOX, Appellant, v. FRANK SONKA, Respondent
• Court: Kansas Court of Appeals

119 S.W. 445

137 Mo.App. 54

A. J. WILCOX, Appellant, v. FRANK SONKA, Respondent

Court of Appeals of Missouri, Kansas City

May 17, 1909

Appeal from Polk Circuit Court.--Hon. Argus Cox, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Rechow & Pufahl for appellant.

Plaintiff's petition stated a good cause of action. The contract was not within the Statute of Frauds; the description was sufficient parol evidence was admissible to identify the land. Means v. La Vergne, 50 Mo. 343; Shewalter v. Pirner, 55 Mo. 230; Charles v. Patch, 87 Mo. 466, and cases cited on page 467; Hammond v. Johnston, 93 Mo. 214 point 4; Bishop on Contracts, sec. 376; Hodges v Kowing, 58 Conn. 12, 18 A. 979; Black & Snyder v. Crowther & Adrian, 74 Mo.App. 480.

C. H. Skinker for respondent.

A contract for the sale of land must either describe the land so that the same can be identified from the terms used in the contract or the contract must refer to external standards of description which definitely point out and describe the land to be conveyed. The contract sued upon wholly fails to do this and was therefore within the statute of frauds and void and defendant's demurrer was properly sustained. King v. Wood, 7 Mo. 389; Fox v. Courtney, 111 Mo. 147; Ringer v. Holtzen, 112 Mo. 519; Whaley v. Hinchman, 22 Mo.App. 483; Weil v. Willard, 55 Mo.App. 376; Hain v. Burton, 118 Mo.App. 577.

OPINION

JOHNSON, J.

Action to recover damages resulting to plaintiff from the breach by defendant of a contract for an exchange of farms. The petition alleges that the parties entered into the following contract in writing:

"Article of agreement made this the first day of April, 1908, by and between A. J. Wilcox of Pleasant Hope, Mo., party of the first part, and Frank Sonka of Bolivar, Mo., party of the second part, witnesseth: That we the parties to this contract have this day traded farms on the terms hereinafter mentioned, I, A. J. Wilcox, party of the first part, hereby agree to trade my farm of 160 acres in Lynn County, Tex., for 60 acres in Polk County, Mo., situated near Bolivar, Mo., lying near the southeast corner of the city limits of the town of Bolivar, Mo. And A. J. Wilcox, party of the first part, further agrees to pay Frank Sonka of the second part a cash difference of $ 500. Each party to this contract agrees to furnish and deliver to the other a good warranty deed and abstract showing a clear title. And the said A. J. Wilcox further agrees to warrant this land to be smooth land and lay comparatively level. It is further agreed that if either party fails to comply with the terms of this contract, the party failing to fully comply with the terms of this contract will forfeit to the other the sum of $ 500 as liquidated.

"A. J. WILCOX,

"FRANK SONKA."

Defendant demurred to the petition on the grounds, first, that it did not state facts sufficient to constitute a cause of action and, second, "because the contract upon which said petition is founded is void on its face." The demurrer was sustained by the court, plaintiff elected to stand on the petition, refused to plead further, and brought the case here by appeal from the judgment rendered against him.

The only point urged by defendant against the petition is that the written contract pleaded discloses on its face that it is void under the statute of frauds because of the insufficient description therein of the land plaintiff undertook to convey. The land is described as "my farm of 160 acres in Lynn county, Texas." This description was definite enough to satisfy the requirements of the statute of frauds under the accepted rules applied in cases of this character. [Means v. La Vergne, 50 Mo. 343; Shewalter v. Pirner, 55 Mo. 218; Charles v. Patch, 87 Mo. 450; Hammond v. Johnston, 93 Mo. 198, 6 S.W. 83; Black v. Crowther, 74 Mo.App. 480; Hodges v. Kowing, 18 A. 979; Bishop on Contracts, 376.] We said in Black v. Crowther, supra, "An examination of cases in this and other States will disclose a great lack of harmony in the application of the rule which is fairly well agreed upon. The rule may be stated thus: The land need not be fully and actually described in the paper so as to be identified from a mere reading of the paper. But the writing must afford the means whereby the identification may be made perfect and certain by parol evidence." The description in that case was "for your joint equity in five and one-half acres of land held by you and us." We held the description sufficient and pointed out the essential differences between it and the description in Whaley v. Hinchman, 22 Mo.App. 483, which we held to be insufficient.

We think the writing in the present case affords the means whereby the identification of the land...