Kervin v. Biglane , 144 Miss. 666 ( 1926 )

^* Corpus Juris-Cyc. References: Frauds, Statute of, 27 C.J., p. 269, n. 72; p. 278, n. 75; Necessity that memorandum in writing must contain essential elements of contract to satisfy the statute of frauds, see 29 A.L.R. 1219; 25 R.C.L. 645; 4 R.C.L. Supp., 1595; 5 R.C.L. Supp. 1335. Biglane, complainant, appellee here, filed his bill in the chancery court of Covington county against J.D. Kervin and others, seeking specific performance of the following paper:

"Exhibit A. "Collins, Miss., 2 — 16 — 26.

"For the consideration of one dollar I hereby give O.J. Biglane option on lots 1 and 2, town of Collins, Miss., known as the Collins Furniture and V.T. Dees Son store location, for sixty days, which option ends April 16, 1926. The consideration of lots is to be $4,250 (forty-two hundred and fifty dollars).

"[Signed] J.D. KERVIN.

"Witness: MRS. J.D. KERVIN."

The bill alleged that Kervin had agreed to sell and Biglane had agreed to purchase the property described in Exhibit A, above quoted, except the following:

"Less a strip on the west side fronting Main street."

And also alleging that this was an option to sell on the part of the defendant, and to purchase on the part of the complainant, and that within the sixty-day period he (Biglane) tendered four thousand two hundred fifty dollars to appellant, Kervin, together with a statutory warranty deed which recited the consideration of four thousand two hundred fifty dollars and described the land as described in the option, with this addition:

"Less a strip on the west side thereof being two feet six inches wide fronting Main street."

According to the allegations of the bill, the money was tendered to Kervin, together with a warranty deed to be signed by him on the 13th day of April, 1926, and on the same day Biglane filed the bill herein. He also complained that certain rents had been collected from certain tenants, and the bill was filed against the tenants. He offered to tender the four thousand two hundred fifty dollars into court and demanded that Kervin be required to specifically perform the contract, Exhibit A.

To this bill a demurrer was interposed, the second and third grounds of which are as follows:

"Second. That the alleged contract which is Exhibit A to the bill, being within the statute of frauds, is such a contract that this court will not enforce.

"Third. That the alleged contract of sale or option is so indefinite, uncertain, and incomplete as to purpose, terms, and description of land that it falls within the statute of frauds, and specific performance of it will not be decreed, and that this suit is prematurely brought," — which demurrer was overruled by the court.

We think it very clear that the alleged contract which is the basis of this bill for specific performance is within our statute of frauds (section 3119, Hemingway's Code [section 4775, subsec. C, Code of 1906]), which reads as follows:

"An action shall not be brought whereby to charge a defendant or other party . . . (c) upon any contract for the sale of lands, tenements, hereditaments, or the making of any lease thereof for a longer term than one year; . . . unless, in each of said cases, the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized."

Aside from the fact that there was no stipulation in the alleged contract that Kervin was to execute a warranty deed, if, indeed, it could be said there was any contract to execute any deed at all, and the further fact that there is a material change in the description in the alleged option, and the description in the deed sought by Biglane from Kervin, at the time he tendered the money, it is perfectly manifest to us that it cannot be said from a close scrutiny of this paper whether it is a contract to lease, to sell, or to purchase, and, if to lease, the time of the begining and end of the lease contract is not therein shown; in other words, the paper is so indefinite, so vague, and uncertain that no one can tell what was intended to be done by the parties at the time of its execution. Our court is committed to the doctrine announced in Waul v. Kirkman, 27 Miss. 823, wherein Mr. Justice HANDY, as the organ of the court, said:

"The rule upon this point is well settled to be that the memorandum, in order to satisfy the statute, must contain the substantial terms of the contract expressed with such certainty that they may be understood from the contract itself, or some other writing to which it refers, without resorting to parol evidence. Boydell v. Drummond, 11 East, 142 [and other authorities]. For otherwise all the danger of perjury, intended to be guarded against by the statute, would be let in. And when reference is made in the memorandum to another writing, it must be so clear as to prevent the possibility of one paper being substituted for another. 1 Sug. Vend., 94; Smith v. Arnold, 5 Mason (U.S.) 416, Fed. Cas. No. 13,004."

Under the above-quoted rule, it certainly is a most essential element that the contract state or show in some manner whether it is a contract to sell or not, and whether a warranty deed or a quitclaim deed was to be executed or not. These are just as essential elements as the purchase price.

The bill herein undertakes to explain and supply these very essential elements of the contract, but the instrument itself is so uncertain as to be absolutely void, because, by no stretch of construction, from any language in the paper, can it be said that it is an offer to sell.

In the case of Nickerson v. Fithian Land Co., 118 Miss. 722, 80 So. 1, it is said:

"In order to avoid the Statute of Frauds, the agreement in writing must be certain, or capable of being made certain by reference to something else whereby the terms and subject-matter of the agreement may be ascertained with reasonable precision; otherwise, it cannot be carried into effect by decree of the court." Fisher v. Kuhn, 54 Miss. 480; McGuire v. Stevens,42 Miss. 724, 2 Am. Rep. 649.

In the case of Sturm v. Dent (Miss.), 107 So. 277, Judge HOLDEN, as the organ of the court, while indicating his leaning against the rule which obtains in Mississippi, announced in no uncertain terms that the rule quoted to us from Waul v.Kirkman, 27 Miss. 823, obtains in the courts of Mississippi, and that same would be adhered to in Mississippi, wherein it is distinctly stated that the terms, including the purchase price, must be stated in the promise or agreement of sale. Here we cannot even uphold this instrument as an agreement or offer to sell. Under the authorities cited (Waul v. Kirkman, 27 Miss. 823; Scherck v. Moyse, 94 Miss. 259, 48 So. 513; Willis v.Ellis, 98 Miss. 197, 53 So. 498, Ann. Cas. 1913A, 1039;Fisher v. Kuhn, 54 Miss. 480; McGuire v. Stevens,42 Miss. 724, 2 Am. Rep. 649; Giglio v. Saia, 140 Miss. 769,106 So. 513; and Sturm v. Dent [Miss.], 107 So. 277) we are of opinion that the court below was in error in overruling the defendant's demurrer, and that said demurrer should have been sustained.

Applying the conclusions we have reached to the bill in this cause, we cannot now conceive of any amendment which could be made by the complainant in the court below by which he could enforce specific performance of the contract herein considered, but, out of an abundance of caution, we shall remand the case, with leave to the complainant to amend his bill within thirty days, and, if not amended within thirty days, the court below will finally dismiss the bill.

Reversed and remanded.