Hollis v. Burgess , 37 Kan. 487 ( 1887 )

The opinion of the court was delivered by

Johnston, J.:

1 Sale of land-contract in letters.

The letters contained in the findings embody a definite contract to sell the land, and we think the court rightly held it enforceable. The correspondence between Hollis the owner and Burgess the proposed purchaser was carried on through one Marsh, who to a certain extent acted for each. The letters of Hollis áddressed to Marsh relating to the land were intended for, and were communicated to, Burgess, and Marsh acted for Burgess in writing and transmitting his replies to the proposals made by Hollis.' This was sufficient. “ It is not essential that the letter should be addressed by one of the contracting parties to the other, since the statute of frauds is only concerned with the evidence by which an agreement is to be established.” (Pomeroy on Contracts, § 84.) In the correspondence Hollis made a definite ProPosal of the terms upon which he would sell, and Burgess made an unqualified acceptance, and the letters considered together embrace all the essential elements of a completed contract. It is true that the word except was used in one instance instead of accept, but the connection in which the term was used made it manifest that it was intended to express an acceptance of the proposal. The misspelling of the word did not, and could not, mislead; and in fact the letters themselves show that Hollis understood and treated the term as an expression of assent.

2 statute of frauds; certain descreption of land sold.

3. written contract, enforcea.

The land which formed the subject of the contract was described in the letters as “the Snow farm,” and it is objected that the description is to® uncertain. The general doctrine regarding the certainty of description required under the statute of frauds, contended for by counsel for plaintiffs in error, is not questioned. It is not essential, however, that the description should be given with such particularity as to make a resort to extrinsic evidence unnecessary. If the designation is so definite that the purchaser knows exactly what he is buying, and the seller knows what he is selling, and the land is so dethat courj; cari) wj^h the aid of extrinsic evidence, apply the description to the exact property intended to be sold, it is enough. (Fry on Specific Performance, § 209; Pomeroy on Contracts, § 90.) The property in controversy was commonly designated as the “Snow farm.” It was so known and spoken of by all the parties at the time of the negotiations, as well as before and since that time. The description could be connected with the land without difficulty, and no doubt or dispute could arise regarding either its location or extent. Other objections for uncertainty are made to the mortgage which Burgess was to assume, and the stock which he was to keep for Hollis from March 1 to July 1 of that year. The plaintiffs in error inquire, What mortgage and what stock were intended ? The correspondence .clearly denotes that the mortgage .referred to was a $600 mortgage on the land, and from anything that appears in the record it was the only mortgage existing against it. This mortgage Burgess unconditionally assumed, and in doing so assumed the payment of all the debt which it represented and secured. It was shown and found at the trial that the land was subject to a $600 mortgage which had been duly executed upon it prior to the date of the contract, and that the mortgage at that time remained due and wholly unpaid. In respect to the stock, they are referred to throughout the correspondence as those belonging to Hollis, and which were being wintered in that locality. In one of the letters written by Hollis during the negotiations, and which contained a proposal to Burgess, the stock which he desired to have cared for are alluded to as all that he had left there. On the whole, we think that the identity of the stock intended was sufficiently definite.

4. specific performance.

All the Justices concurring.

A final objection on that ground was, that the deed was to be placed in the “F. N. bank,” of Clay Center. From the letters there can be no doubt but that the First National bank of Clay Center was the one referred to. Besides, the person or bank through whom, or the method by which, the deed should be sent to Burgess, can scarcely be regarded as an essential or substantive feature of the contract; and only such need to appear on the face of the writing required by the statute. We are of opinion that the letters stated the parties to the agreement, the subject of sale, and the terms of sale, with such certainty as to furnish evidence of a complete agreement. But if they failed to meet the requirements of the statute, Burgess must still prevail. It appears that after the contract was made he immediately went into possession of the land, and he had made lasting and valuable improvements thereon before he learned of the attempted repudiation of the contract by Hollis. The possession was taken and the improvements made in pursuance of the agreement; and in addition to this, he made a partial payment of $100 to'the agent of Hollis. These acts were performed on the faith of the agreement that had been made, and constituted such a part performance as would take the case out of the statute of frauds. (Edwards v. Fry, 9 Kas. 417.) Having complied with all the conditions of the contract, Burgess is entitled to a specific performance. The judgment rendered, however, must be modified in one particular. The contract was made by Hollis without his wife joining him in it, and only the contract made can be enforced. The inchoate interest of the wife was not included in the agreement, and the judgment should be so entered as to protect that interest. (Gray v. Crockett, 35 Kas. 66, 686.) When so modified, the judgment will be affirmed.