Lester v. Heidt , 10 L.R.A. 108 ( 1890 )

Bleckley, Chief Justice.

The real estate alleged in the petition to have been the subject of sale and purchase was a certain plantation consisting of two lots of land. The broker’s .memorandum was as follows : “This is to certify that I have this day sold to D. B. Lester the property placed in my hands by Thos. P. Heidt for the sum of Pour Thousand Dolls, (cash) on the terms that he, the said Thos. P. Heidt, agreed upon with the said D. B. Lester. (Signed) Robert H. Tatem, Real Estate Dealer, May 2, 1889.”

We need not inquire whether the writing sufficiently identifies the property. It is fatally deficient in its failure to express a complete and entire contract. It discloses on its face that something more was agreed upou than is set forth. There were terms embraced in the convention between the parties of which the writing aftords no evidence, save that they had been agreed upon and wer-e terms additional to those stated in the writing. • The instrument is silent as to what they were, but they are recognized as terms. That they were referred to at all indicates that they were material. According to the petition, they were in fact material, for it avers that out of the price of four thousand dollars named in the writing was to be retained by the purchaser eight hundred dollars to be applied to a mortgage with which the property is encumbered. No often is made in the petition to pay the whole price, as a condition to the specific performance prayed for, but only to pay what remains after retaining eight hundred dollars or so much less as may be sufficient to discharge the mortgage. The writing construed without qualification by the unexpressed terms referred to, imports that the whole sum of four thousand dollars is to be paid; the petition seeks to have a conveyance, decreed on paying less than that sum, and names eight hundred dollars less as the probable deduction contemplated by the parties on account of the mortgage. A deduction twice or thrice as great, and for any purpose whatsoever, even for liquidating a mortgage on some other property, would be quite as consistent with the memorandum and as fully comprehended in its phraseology as this. It is obvious that all the evils of parol evidence might be realized as to a part of this contract, so much of it as is left out of the writing, -were the present action held maintainable. The plaintiff might testify or bring witnesses to testify that the terms agreed upon were thus and so, and the defendant that they were wholly different. As well might the temptation to perjury pervade the whole contract as a material portion of it. The rule is that the writing, in order to be sufficient to satisfy the statute, must be coextensive with the stipulations ; it must cover the entire contract. Riley v. Farnsworth, 116 Mass. 223; Parkhurst v. Van Cortlandt, 1 Johns. Chan. 273; Williams v. Morris, 95 U. S. 444; 1 Reed Stat. Frauds, §392; Brown Stat. Frauds, 4th ed., §§371a, 376; Wood Stat. Frauds, §371. There may be various writings provided they refer one to another, but they cannot be correlated and connected together by parol evidence. North v. Mendel, 73 Ga. 400. If parol evidence is incompetent to supply the connecting link between two writings, much more is it incompetent to supply some of the chain of the contract itself, though there may be a written link by which to attach it to that portiou of the chain which the writing covers.

The present case is altogether unlike Mohr v. Dillon, 80 Ga. 572. There the broker knew what the contract was, attempted to enter the whole of it in his memorandum, and made written signs accordingly, but by reason of chasms and abbreviations the signs -were ambiguous. Their .meaning was not clear, and needed the light of surrounding circumstances and contemporaneous facts to explain it. Ilei’e 'the broker might or might not have known what the whole contract was, but certainly a part of it was uuauthenticated -by his signature, for he made no attempt to bring the 'teiuns agreed upon by the contracting parties between themselves within the purview of his memorandum. He purposely omitted them from the writing. In this respect the writing is not ambiguous, but certain, clear and definite. It hints at but one meaning, and expresses with conclusive certainty what it attempts to express. No amount of evidence consistent with its language could render its signification more obvious or intelligible. Its deficiency is one of omission, not of imperfect or obscure expression. Its infirmity is not doubtful or ambiguous speech, but utter silence. The case of Johnson v. Ronald, 4 Munf. 77, is not in point, for there the price was shown by the parol evidence not only to have been fixed but paid, and the vendee was in possession. The writing was therefore aided by part performance. Here, on the contrary, nothing whatever in the nature of performance is alleged, beyond tender or offer to pay in conformity to terms not expressed in the writing. The right to a conveyance' in the present ease depends alone on the sufficiency of the broker’s memorandum. That being insufficient, there wTas no error in sustaining the demurrer. . Judgment affirmed.