Cash v. Maddox , 265 S.C. 480 ( 1975 )

Lewis, Chief Justice

(dissenting):

This is an appeal from an order of the lower court directing specific performance of an agreement to sell real estate and awarding damages and counsel fees. There was no written contract to sell and the basic issue concerns the sufficiency of' a notation on a check for the down payment to constitute a memorandum of the agreement, as required by the Statute'of Frauds (Section 11-101,' 1962 Code of Laws) which provides:

“No action shall be brought whereby:

“(4) To charge any person upon any contract or sale of lands, . . .

“Unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some person thereunto by him lawfully authorized.”

Appellants, husband arid wife, own lands in Pickens County, South Carolina. Respondents, who are husband and wife, apparently desired to purchase a fifteen (15) acre tract from appellants and negotiations were entered into for such purchase. While some question is raised thereabout, the record clearly shows that both of the appellants engaged in the negotiations and were acting for eách other throughout the transaction.

The testimony shows that respondents heard through a relative that the land in question was for sale. At the time' of the first contact between the parties, respondents were residing in Florida and appellants in Georgia. Respondent Morris Cash was familiar with the land and as a result of a telephone conversation with appellant Sue H. Maddox the sale and purchase of the 15 acres in question was agreed upon at the price of $3,500.00, with a down payment or binder required of $200.00. A check in the amount of $200.00 was delivered to appellants and cashed. When endorsed by appellants, the check had written across one end the following: “15 acres in Pickens, S. C. land binder, 30 days from date of .ck to June 3, 1970.” (Admittedly, the year was inadvertently written 1970 instead of 1971).

The testimony shows that the 15 acre tract of land consisted of all of the land owned by appellants on the south or righthand side of S. C. Highway 183, proceeding from Pic-kens to Greenville and that all parties knew and understood the identity of the land in question.

Shortly after the down payment was made, respondents advised appellants of the name of their attorney in Pickens who would handle the matter for them. Appellants then notified respondents’ attorney that the plat of the 15 acre tract would be sent to him and that they would be in Pickens to close the matter on May 28, 1971. A few days later appellants notified respondents that they did not care to sell because it would cause trouble in their family. An offer to return the down payment of $200.00 was refused.

Upon tender of the balance of the purchase price, appellants refused to convey the land. This action was subsequently instituted to require compliance with the agreement to sell. Admittedly, the only memorandum of the sale was the foregoing notation written upon the check accepted by appellants as the down payment. Appellants’ basic defense was that the check did not constitute a sufficient memorandum of the sale to satisfy the Statute of Frauds (Section" 11-101, supra).

The pleadings in this case are unverified. Neither of the appellants testified. The testimony of respondents as to the transaction is therefore uncontradicted. There is no testimony by appellants that the consideration was inadequate, nor is there any contention that they were in any manner the victims of a fraud. They simply contend, in effect, that they should be relieved of their part of the bargain because there was no sufficient memorandum of the agreement to sell.

In discussing the memorandum required by the Statute of Frauds, we stated in Blocker v. Hundertmark, 204 S. C. 269, 28 S. E. (2d) 855:

“The statute of frauds merely requires some memorandum or note of the agreement relating to real estate to be in writing and signed by the party charged therewith or his agent,- and does not require a formally executed contract. There must be written evidence of the contract, if there is no written contract, and our court has g'one so far as to hold that a letter which recites the contract, but repudiates it, is sufficient. Colleton Realty Co. v. Folk, 85 S. C. 84, 67 S. E. 156. As stated in 37 C. J. S., Frauds, Statute of, § 174; ‘The note or memorandum is not the contract, but only the written evidence of it required by statute.’ ”

• The check and notation thereon leaves no doubt that there was an agreement between the parties for the sale of a 15 acre tract of land, that the check was the binder or down payment, and that the transaction was to be closed on or before June 3, 1971.

Appellants contend however that the memorandum fails to meet the requirements of the Statute of Frauds because there is no sufficient description of the land sold by which it can be identified, nor is the consideration stated, relyng upon the principles stated in several of our cases that the memorandum, relied upon, must establish the essential terms of the contract, including the identity of the land and the consideration to be paid, without resort to parol evidence. Speed v. Speed, 213 S. C. 401, 49 S. E. (2d) 588.

The foregoing is not an absolute rule. Certainly it should not be applied when no reason exists to do so.

The purpose of the statute is to protect against fraud. In this case, the fact that there was an agreement for the sale of a tract of “15 acres in Pickens, S. C.” is evidenced by the written memorandum.

The question of whether parol evidence would be admissible to establish the identity of the particular tract of land referred to in the memorandum and to establish the consideration, where there is a dispute as to these issues, is not before the Court. Testimony was admissible to etablish that there was no disagreement as to the identity of the land or the consideration to be paid and that the minds of the parties had met on these issues. If there was a dispute or ground for doubt as to what land was intended and what was to be paid therefor, the rules advanced by appellants should be applied and the parol testimony held inadmissible. That is not the case here.

Since the fact of the agreement for the sale of the land is evidenced by the written memorandum and the testimony shows that the terms of the agreement are not in dispute, there is no reason or basis for the application of the Statute of Frauds. As stated in Beckwith v. Talbot, 95 U. S. 289, 24 L. Ed. 496, 498 (quoted with approval in Speed v. Speed, supra), in discussing the admissibility of parol evidence to supply a deficiency in the agreement:

“There may be cases in which it would be a violation of reason and common sense to ignore a reference which derives its significance from such proof. If there is ground for any doubt in the matter, the general rule should be enforced. But where there is no ground for doubt, its enforcement would aid, instead of discouraging, fraud.”

The lower court properly held that a binding agreement for the sale of the land in question had been established entitling respondents to specific performance.

Although respondents are entitled to specific performance, they are not entitled, under the particular facts of this case, to recover damages. It is conceded that no basis exists for the award by the lower court for attorneys’ fees.

For the foregoing reasons, I respectfully dissent. I would affirm the judgment for specific performance and reverse the award for damages and counsel fees.