Logan v. Waddle , 315 Mo. 980 ( 1926 )

Upon a division of opinion in the Springfield Court of Appeals, this case was duly certified to this court in pursuance of constitutional provisions.

Respondent commenced this action in the Circuit Court of Christian County to recover damages for breach of an alleged contract for the sale of real estate. Upon change of venue this trial of the cause was had in the Circuit Court of Lawrence County wherein respondent recovered a judgment for $300.

Respondent in his petition alleges the contract to be: That appellant would pay respondent the sum of six hundred dollars in money and would make him a good and sufficient deed for a house and two lots located in the town of Ozark, and respondent was to deliver an automobile truck to appellant on the 10th or 15th day of June, 1919, and respondent was to assume and agree to pay an incumbrance on said real estate amounting to one thousand dollars. The petition alleged that said contract was evidenced by writings duly signed by the said parties, and that from the same the terms of said contract as aforesaid were ascertainable.

The answer was a general denial, want of sufficient consideration, and the Statute of Frauds, appellant insisting that the alleged contract, sought herein to be established by correspondence between the parties, is not valid or binding under the Statute of Frauds of this State which provides that: "No action shall be brought . . . upon any contract made for the sale of lands . . . unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith." [R.S. 1919, sec. 2169.] His contention, in substance, is that the writings and correspondence, which are relied upon to establish a valid binding contract, do not, in themselves, show that the lands therein referred to are the lands in question, and, therefore, no written memorandum, such as the statute requires, was executed.

At the trial the following documentary evidence was introduced:

PLAINTIFF'S EXHIBIT 1.

"Ozark, Missouri, May 24, 1919. "MR. B.L. WADDLE, "Hominy, Oklahoma.

"Friend B.

"As you didn't write about our trade I will. If you still want the truck I will trade with you for the house for six hundred dollars. If you want to make this deal let me know at once before Burgess goes to work on the house. It is $200 better than I thought I would do but I haven't got any use for the truck and you have. It is just what you need. Answer by return mail.

"M.R. LOGAN."

PLAINTIFF'S EXHIBIT 2.

"Hominy, Oklahoma, May 26, 1919. "M.R. LOGAN, "Ozark, Missouri.

"Friend Mack: —

"In replying to yours of the 24th will say that if your truck is O.K. as you say, and you will drive it to Tulsa I will give you six hundred dollars and the house and two lots, you assuming $1000 due Christian County with interest from August 1. Would want it about June 10 or 15 as this is the time we get a pay day in the oil field. Would not be able to pay difference sooner. If this suits you let me know at once and I will have deed made and meet you at Tulsa at a date agreed on later.

"B.L. WADDLE.

"P.S. If you want to trade send me a blank deed as I can't get a Missouri form here."

PLAINTIFF'S EXHIBIT 3.

"Ozark, Mo., May 28, 1919.

"B.L. WADDLE, "Hominy, Oklahoma.

"Dear Sir: —

"Upon investigation I find you have neglected to have your deed from Gardner recorded, and I am unable to find abstract. Am enclosing you regular form Warranty Deed, you may have executed and return, together with the deed you got from Gardner so it can be recorded first. Please send Abstract also if you have it. If not, where is it? I will deliver truck to Tulsa anytime you say, but will have to wait for a few days as it has been raining here for a week and lots of mud.

"B., I find there is about $70 interest on the note. I will pay that off and you pay my expenses to Tulsa and return. We left the names of you and your wife out at top of deed, didn't know whether it is in your name or hers; so you can fill that in. You can fix the day and place for me to meet you in Tulsa.

"Yours, "M.R. LOGAN."

PLAINTIFF'S EXHIBIT 4.

"Hominy, Oklahoma, May 29, 1919.

"M.R. LOGAN, Ozark, Mo.

"Dear Sir: —

"In reply to yours of the 28th, will say that I have Abstract, Deed and Tax Receipts, all of which I will deliver to you when I meet you in Tulsa. Now it has been raining here for past four weeks and has been so muddy we have not been able to get around, consequently business hasn't been so good and I would like to ask you to wait on me 60 days for 300 dollars and will pay you 300 dollars when you come and balance in 60 days. Will give you my note. If this suits you, you can start any time roads will be good enough. Will meet you at Radcliff and Sanders' Wholesale Grocery Store, Second Street, Tulsa. You can write me day before you start which will give me time to get to Tulsa. It will take you three days to come. I will bring all papers, insurance policy, deed, tax receipts, abstracts and all. Let me know at once if this suits and oblige,

"B.L. WADDLE.

"P.S. Bring all tools, chains and so on."

PLAINTIFF'S EXHIBIT 5.

"Hominy, Oklahoma, June 1, 1919.

"M.R. LOGAN, Ozark, Mo. "Friend Mack: —

"I don't like to play a boy's game but I have had so much trouble with trucks that I have decided to use teams. Just got in this morning with two trucks out three days on a one day trip; disgusted me so, I wired you not to come.

"B.L. WADDLE."

PLAINTIFF'S EXHIBIT A.

"WARRANTY DEED, From B.L. Waddle and Annie Waddle of the County of Osage and State of Oklahoma, to Arthur E. Hicks, of Christian County, Mo., second party. Con. $2000. Grant, bargain and sell to second party, his heirs and assigns, the following described lots and tracks of land in Christian County and State of Missouri, to-wit:

"All of City Lots 624-625-617 618, Paul's Survey of City of Ozark, Mo.

"Made subject to a School-Fund Mortgage for $1000, the second party assumes and agrees to pay.

"To have and to hold unto the second party, his heirs and assigns forever. The said B.L. Waddle and Annie Waddle convenanting that they are lawfully seized, etc., in fee simple. (With general covenants of warranty.)

"B.L. WADDLE, "ANNIE WADDLE."

"ACKNOWLEDGMENT.

"State of Oklahoma, County of Osage, ss.

"May 29th, 1919. B.L. Waddle and Annie Waddle his wife. Before R.D. Copeland, Notary Public, Hominy, Okla.

"Recorded in Christian County, Missouri on July 11, A.M. LITTLE, Recorder."

In invoking the Statute of Frauds, in this case, appellant relies principally upon the insufficiency of the description of the land in question. The language, "a house and two lots located in the town of Ozark," standing alone will not suffice. The note or memorandum required by the statute need not be contained in a single document, but may be contained in separate writings when the separate writings, taken together, meet the requirements of the statute.

The rule, we think, is well stated in 27 Corpus Juris, pages 259, 260, under the subject-matter of Statute of Frauds, Section 308, thus:

"The note or memorandum required by the Statute of Frauds need not be contained in a single document, nor, when contained in two or more papers, need each paper be sufficient in contents and signature to satisfy the statute. Two or more writings properly connected may be considered together, matters missing or uncertain in one may be supplied or rendered certain by the other, and their sufficiency will depend upon whether, taken together, they meet the requirements of the statute as to contents and signature."

An important question in this case is, was the deed, plaintiff's Exhibit "A," above set out, properly admitted in evidence? We must go to that deed for the description of the land. There is no sufficient description contained in any other writing. By reference to plaintiff's Exhibit 2, of date May 26th, it will be seen that appellant, writing to respondent, employed this language: "I will give you six hundred dollars and the house and two lots, you assuming $1000 due Christian County with interest from August 1." And in the same letter this language: "If you want to trade send me a blank deed as I can't get a Missouri form here."

Respondent, in reply to said letter, wrote, May 28th, as follows: "Am enclosing you regular form Warranty Deed, you may have executed and return . . . We left the names of you and your wife out at top of deed, didn't know whether it is in your name or hers; so you can fill that in." (See plaintiff's Exhibit A).

May 29th, appellant, in reply to respondent's letter of May 28th, wrote as follows: "In reply to yours of the 28th will say that I have Abstract, Deed and Tax Receipts, all of which I will deliver to you."

We think the testimony offered in the case proves conclusively that the deed mentioned in the above-quoted portion of appellant's letter of May 29th, though never delivered by appellant to respondent or to any one for him, is the same deed forwarded to appellant by respondent and alluded to in the above quoted portion of respondent's letter of May 28th, and that the deed so mentioned and referred to is the document containing the description: "The following described lots and tracts of land in Christian County, State of Missouri, to-wit: All of City lots 624-625-617 618 Paul's Survey of the City of Ozark, Mo.," and that said document contained said identical description at the time appellant referred to the "deed" in his letter of May 29th, and that said deed was properly admitted in evidence.

Commenting on the rule hereinabove set out, Corpus Juris, vol. 27, pages 260-261, uses this language: "The rule is frequently applied to two or more, or a series of, letters or telegrams, or letters and telegrams, sufficiently connected to allow their consideration together. But the rule is not confined in its application to letters and telegrams; any other documents can be read together when one refers to the other. The rule has been applied so as to allow the consideration together, when properly connected, of a letter and an order of court, a letter and an order for goods, letters and undelivered deeds, correspondence and accompanying papers, a check and a letter, a receipt and a check, a memorandum of agreement and a deed, and a contract, deed, and instructions to a depositary in escrow. Matters not contained in one paper, or not stated therein with sufficient definiteness and certainty, such as the name of a party, a description of the subject-matter, and statement of the consideration, or the terms of payment, are frequently found to be adequately stated in another paper which is sufficiently connected with the former paper to justify their consideration together."

The deed, containing the description of the property as hereinabove set out, was forwarded to appellant by respondent on May 28th. On May 29th appellant wrote that he had the deed and would deliver it to respondent. On May 29th the deed was signed and acknowledged by appellant and his wife. The testimony shows that thereafter appellant erased respondent's name, as grantee, and inserted in lieu thereof the name "Arthur E. Hicks," and with the exception of this change of names used the same paper writing to convey the land in question to said Hicks.

When appellant referred to this deed, in his letter of May 29th, as above stated, he, by that reference, incorporated the contents of that deed in his letter so as to allow the two to be considered together for the purpose of determining whether the requirements of the Statute of Frauds were satisfied. "An express or explicit reference from one document to another incorporates the latter in the former so as to allow the two to be considered together for the purpose of determining whether the requirements of the Statute of Frauds are satisfied." [27 Corpus Juris, p. 261, sec. 309.] While an undelivered deed cannot itself be relied on as a sufficient memorandum of an oral contract of sale, it may, if the circumstances clearly show that it embodies the terms of a prior agreement of which there was an insufficient written memorandum signed by the party to be charged, be used to supply the omissions in such memorandum. [25 R.C.L. 682, sec. 320.]

And again, an undelivered deed signed by the grantor may be resorted to in order to aid an insufficient description of the land in other writings evidencing the contract. [25 R.C.L. 682, sec. 320; Ryan v. United States, 136 U.S. 68, 10 Sup. Ct. 913, 34 U.S. (L. Ed.) 447; Schneider v. Anderson, 75 Kan. 11, 88 P. 525, 121 A.S.R. 356.] "The description of the subject-matter may be wholly or partially contained in an auxiliary writing, which, if referred to in such a manner as to establish the connection, becomes a constituent part of the memorandum." [Pomeroy on Specific Performance of Contracts (3 Ed.) par. 90; see also Cement Material Co. v. Kreis, 261 Mo. l.c. 170.]

Finding no error sufficient to warrant the disturbance of the judgment rendered herein, the judgment should be affirmed. It is so ordered. All concur, except Graves, J., absent.