Wilson v. Fisher

• Decision Date: 30 May 1945
• Docket Number: No. A-478.,A-478.
• Citation: 188 S.W.2d 150
• Parties: WILSON v. FISHER.
• Court: Texas Supreme Court

188 S.W.2d 150

WILSON v. FISHER.

No. A-478.

Supreme Court of Texas.

May 30, 1945.

Rehearing Denied June 27, 1945.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Mrs. Josephine G. Wilson against Mrs. Pearle Mercer Fisher for specific performance, and damages for breach, of a contract for sale of an apartment building and furniture. To review a judgment of the Court of Civil Appeals, 185 S.W.2d 186, reversing a judgment for specific performance and awarding plaintiff only the amounts of money tendered and paid into court by her and defendant, plaintiff brings error.

Affirmed.

Geo. K. Holland, of Dallas, for plaintiff in error.

Geo. Clifton Edwards, of Dallas, for defendant in error.

FOLLEY, Commissioner.

This is the suit of the petitioner, Mrs. Josephine G. Wilson, against the respondent, Mrs. Pearle Mercer Fisher, for specific performance of an alleged agreement to transfer a brick duplex and garage apartment, including certain furniture, at the price of $6350, and, in the alternative, for damages for the breach thereof. The suit is founded upon two written instruments constituting the contract whereby it is alleged Mrs. Fisher was to transfer to Mrs. Wilson Lot 13 in Block N/2047, Perry Heights Addition to the city of Dallas. The only defense which is material is that the agreement was within the statute of frauds. Article 3995, V.A.C.S.

Each party tendered into court the amount of money alleged to be due the other. Mrs. Wilson tendered the balance of the purchase price and Mrs. Fisher the return of the money theretofore received from Mrs. Wilson. The trial resulted in a judgment for specific performance. The Court of Civil Appeals at Dallas, by majority opinion, held the alleged agreement was not sufficiently specific to identify the property and was thus within the statute of frauds and nonenforceable either as to specific performance or for damages. That court rendered judgment that Mrs. Wilson take nothing by her suit except the money she had tendered and paid into court and that tendered by Mrs. Fisher. Justice Young dissented because he thought the instruments sued upon were specific enough to support Mrs. Wilson's plea for specific performance. 185 S.W.2d 186.

Two separate instruments compose the alleged contract, one being drafted by each party and each of them being signed by both parties.

The instrument drafted by Mrs. Fisher is as follows:

"July 21/43 Contract of Sale. Recd of Mrs. Josephine Wilson $300 in part payment on brick duplex & garage apt located at 4328-30 Cedar Springs on this 21st July 1943 at a price of Sixty Three Hundred & Fifty dollars including furniture at 4330 except one hexagon large table in living room, this also includes rollaway bed in garage apt. Terms all cash, abstract to be furnished by seller. Room at back not included."

The one drafted by Mrs. Wilson is as follows:

"Dallas, Texas July 21, 1943 Received of Mrs. Josephine G. Wilson $300.00 in cash as earnest money on the purchase of property at 4328-4330 Cedar Springs Road total consideration being $6,350.00, including entire furnishings of north side apartment (excepting one antique library table), furniture includes one frigidaire and 3 Murphy beds (1 without mattress). This is a cash consideration when all papers, abstract, etc. have been examined & accepted by Josephine G. Wilson. Full possession of property to be given by Aug. 15th, 1943."

The sole question presented is whether the agreement evidenced by these instruments is within the statute of frauds which denies any party the right to maintain a suit upon an oral contract for the sale of real estate. This controversy is obviously reduced to the determination of the sufficiency of the description of the property so as to identify it with reasonable certainty under the rules governing such transactions.

If the contract is insufficient it not only precludes recovery for specific performance but also for damages for the breach thereof. This is true because an "action for damages for the breach of a contract is, in effect, an action for its enforcement, and the statute, in denying an action for its enforcement, likewise denies an action for damages for its breach." Alworth v. Ellison, Tex.Civ.App., 27 S.W. 2d 639, 640, writ refused.

It should be noted that the instruments do not specifically indicate that Mrs. Fisher is the owner of the property. The lot and block number and the amount of land is not given, nor is the property designated as any particular named tract or as situated in any city, county or state. Also, a room at the rear of the property is not included, yet there is no intimation as to the exact portion of land excluded.

In the absence of equities removing the case from the operation of the statute of frauds, which do not here exist, it is well settled that before a court will decree the specific performance of a contract for the sale of land, or entertain a suit for damages for the breach thereof, the written agreement or memorandum required by the statute must contain the essential terms of a contract, expressed with such certainty and clarity that it may be understood without recourse to parol evidence to show the intention of the parties; and no part of the instrument is more essential than that which identifies the subject matter of the agreement. Jones v. Carver, 59 Tex. 293, 295.

In so far as the description of the property is concerned the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty. Morrison v. Dailey, Tex.Sup., 6 S.W. 426; Osborne v. Moore, 112 Tex. 361, 247 S.W. 498.

The certainty of the contract may be aided by parol only with certain limitations. The essential elements may never be supplied by parol. The details which merely explain or clarify the essential terms appearing in the instrument may ordinarily be shown by parol. But the parol must not constitute the framework or skeleton of the agreement. That must be contained in the writing. Thus, resort to extrinsic evidence, where proper at all, is not for the purpose of supplying the location or description of the land, but only for the purpose of identifying it with reasonable certainty from the data in the memorandum. O'Herin v. Neal, Tex.Civ.App., 56 S.W.2d 1105, writ refused.

The authorities generally recognize these principles but there seems to be a great contrariety of opinion as to their application. We shall not undertake to harmonize or distinguish the maze of decisions applying the rules. We shall review only a few of the leading cases which possess some factual similarity with the present case all of which we think may be harmonized with the above rules and with our decision herein.

The case most strongly urged by the petitioner is that of Morrison v. Dailey, supra , where the memorandum receipt read as follows: "Lancaster, June 28, 1887. Received from H. Morrison forty dollars on my place, known as the `James Perry Tract of Land,' which tract I have sold to him for forty-five hundred dollars, part cash, and the balance to bear interest at ten per cent. per annum until paid. (Signed) Mrs. N. B. Dailey." Judge Gaines wrote the opinion for the court holding the memorandum sufficient under the statute. In doing so he expressed his inclination to hold otherwise, but said the court was not at liberty to depart from its prior decision in Fulton v. Robinson, 55 Tex. 401, where a receipt was held sufficient which recited that the money received was "in part payment of a certain tract of land, being my own headright, lying on Rush creek, in the cross timbers." The Morrison opinion states that the decision in Fulton v. Robinson was "against the weight of authority, and the better reason," and it seems the court followed it only reluctantly.

As we interpret these cases, however, they do little violence, if any, to the above announced rules. The reference to the grantor's "headright" in the Fulton case furnished the means by which the identity of the land might be made certain. 29 C.J. 238; 39...