Patton v. Rucker , 29 Tex. 402 ( 1867 )

Coke, J.

In this case the jury was instructed by the

court, that the plaintiffs having failed to show by'written' evidence any contract of purchase, and having failed to show themselves entitled to a decree on account of a verbal purchase, they must find for the defendant. This instruction is assigned as error. "We are of opinion that the assignment is well taken. While it is prohibited to the court to charge or comment upon the weight of the evidence, it is proper and legitimate, where there is no evidence upon a given issue, so to instruct the jury. Whether there is any evidence, is a question for the judge; whether there is sufficient evidence, is a question for the jury. (Com. of Carpenters v. Haywood, Doug., 375; Jewell v. Parr, C. B. Doug., 909; Austin v. Talk, 20 Tex., 164; Andrews v. Smithwick, 20 Tex., 118; Mitchellv. DeWitt, 20 Tex., 299; Reid v. Reid, 11 Tex., 593.) The correctness of the charge, then, depends upon whether there was evidence conducing to prove either one of the propositions relied on by the plaintiffs as entitling them to recover. If there was such evidence, although it might, in our judgment, be entirely insufficient, the judgment should be reversed for the error of withdrawing it from the consideration of the jury, who were the only proper judges of its sufficiency. (Rogers v. Brodnax, 24 Tex., 543.)

The plaintiffs rely on the letter written by Rash to Rucker, inquiring the terms on which he would sell the land in controversy; the letter written in reply by Rucker, stating his terms; their acceptance of the proposal by drawing the draft for $450 on Rash & Barstow, in compliance -with Rucker’s terms, and its delivery to Rash, who is alleged to have been Rucker’s agent for that purpose, as entitling them to recover in this action. It is insisted, in their behalf, that these written documents, considered together, "with reference to each other, do furnish evidence of a valid contract for the sale of the land. The form, of a memorandum in writing, necessary to take a case out of the operation of the statute of frauds, is immaterial. A letter jjroperly signed, and containing the necessary particulars of the contract, is sufficient. But it must he such a letter as shows an existing and binding contract, as contradistinguished from a pending negotiation, a concluded agreement, and not an open treaty, in order to hind the party from whom it proceeds. So a correspondence consisting of a number of letters between the parties may be taken together, and construed and considered with reference to each other, and the substantial meaning of the whole arrived at; and if, when thus blended, as it were, into one, and the result is ascertained, it is clear that the parties understood each other, and that the terms proposed by one were acceded to by the other, it is a valid and binding contract, and may he enforced. If the substantial terms are sufficiently expressed, collateral circumstances, not contradicting hut consistent with them, may he supplied, as virtually comprehended in the agreement expressed. (Browne on Stat. Frauds, secs. 346-350, 352; Barry v. Coombe, 1 Pet., 640; Stratford v. Bosworth, 2 Ves. & Beame Ch., 345; Gaunt v. Hill, 1 Stark., 10; 16 Wend., 28.) But, as was said in Huddleston v. Briscoe, 11 Ves., 583: “ The court is not to decree specific performance, unless it can collect, upon a fair interpretation of the letters, that they import a concluded agreement; if it rests reasonably doubtful whether what passed was only treaty, let the progress towards the confines of agreement be more or less, the court ought rather to leave the parties to law, than specifically to perform what is doubtful as a contract.”

In order to their enforcement by the courts, contracts for the sale of land must be evidenced by writing. When the writing relied on contains within itself all the particulars of a concluded contract, it is sufficient if it be signed by the party against whom it is sought to be enforced; but if, instead of being evidence of a concluded agreement, whatever may be its form, it is really a mere proposal, such a writing is turned into an agreement, and can be enforced in equity by the other party only by his acceptance of it in writing. A proposal by one party, and an acceptance of that proposal according to the terms of it by the other, constituted a contract. It is not only .necessary that the minds of the contracting parties should meet on the subject-matter of the contract, but they must communicate that fact to each other, so that both may know that their minds do meet, and it is then only that the mutual assent necessary to a valid contract exists, and not until then that the contract is concluded. (1 Pars. on Cont., 404-407; Eliason v. Henshaw, 4 Wheat., 225; Brisban v. Boyd, 4 Paige, 17; Hyde v. Wrench, 3 Beav., 334; Frith v. Lawrence, 1 Paige, 434; Palmer v. Scott, 1 Russ. & Myl., 394; Norton v. Mascall, 2 Vern., 24.)

An acceptance of a proposal to sell, in order to bind the maker of the proposition and conclude the contract, must be unconditional and unqualified. The exact terms of the proposition, without addition or variation, must be acceded to before the proposition is withdrawn; otherwise, the maker of the proposition is not bound by the "acceptance.

An application of these well-settled principles to the facts of this case will, in our opinion, clearly show that the court erred in its instructions to the jury. The proof shows that Rash, at the request of the plaintiffs, wrote a letter to the defendant, Rucker, to know of him if he would sell the land in controversy, and on what terms. It shows that Rucker replied by a letter, stating that he would take $450 in an accepted draft on Rash & Barstow, payable either at sixty or ninety days, but at which date is left in doubt by the testimony. The proof also shows that the plaintiffs promptly made the draft, had it accepted by Rash & Barstow, payable in ninety days, and placed in Rash’s hands for Rucker.

The letter of the defendant, Rucker, proposing the terms on which he will sell, does not describe the land. This would be a fatal objection, and decisive against the right of the plaintiffs to recover, independent of every objection, were it not -obviated by the proof, that Rash wrote a letter to Rucker, asking him if he would sell, and his terms of sale, of the land in controversy. The statute of frauds requires contracts of this character to be in writing. The object of the statute would be defeated, and the very evil intended to be provided against introduced and stimulated, if so material an ingredient in the contract as a definition and description of its subject-matter were allowed to be proved by parol. It has therefore been long since well settled, that parol proof is inadmissible for that purpose. (See authorities referred to ante.) But Rucker’s letter; in reply to that from Rash, must be considered with it, and the two construed together, and when this is done there is no uncertainty as to the subject-matter of the alleged contract. These two letters, then, taken together, contain a proposal which includes everything necessary to a valid contract, if accepted in writing by the plaintiffs. Was it so accepted? The plaintiffs drew a draft on Nash & Baratow, payable at ninety days, had it accepted, and placed it in Nash’s hands for Rucker, to whom it was tendered. This draft must be considered in connection with the two letters. The three papers mutually explain and rely on each other, and when the meaning of each is extracted, with reference to the others, and the substantial result collected, and the whole considered, they blend into one and make up a concluded agreement, when the terms proposed by one are acceded to and accepted by the other, and the whole in writing, and signed respectively by the parties. In order to test the correctness of the charge of the court, which we have seen could only be correct in the hypothesis that no evidence was before the jury conducing to prove either a written or verbal contract of purchase which could be enforced, we have assumed as true all the testimony which goes to support the plaintiffs’ claim, without adverting to any that might contradict it, and upon this assumption, to say the least, a strong case is made out for the plaintiffs—a case which it suffices for the disposal of this cause here to say the plaintiffs • had a clear right to have submitted upon proper instructions to the jury, in order that they might, by their verdict, pass upon the sufficiency of the testimony. It cannot be denied (pursuing the assumption of the truth of the testimony offered by the plaintiffs) that Rucker, after the draft was made and accepted and presented to him by the plaintiffs, could, although they may have decided to withdraw from the contract, have held them to it, and, on a tender of a deed of conveyance to the land, have enforced its payment. He is as much bound as they were. The obligation is mutual, and was so from the time the draft was signed, accepted, and placed in his possession or within his control. If Rucker could have enforced the payment of the money, Jones and Patton have an equal right to recover the land.

We deem it unnecessary to discuss the other proposition relied on by the plaintiffs, by which they contend that they are entitled, although there was no written memorandum of the contract of purchase, to specific performance of the verbal contract, by reason of the existence of facts which take the case out of the operation of the statute of frauds. There is not in the record the least particle of foundation for this proposition to rest on, and if this had been the only ground relied on by the plaintiffs for .relief, there would have been no error in the charge of the court, and the judgment would have been affirmed.

The position assumed by the counsel for the plaintiffs in his argument, that the defendant is not entitled to invoke the aid of the statute of frauds in his defense, because he has not relied on it in his pleadings, is not correct. It is very true that, where a defendant admits an agreement, if he means to rely on its invalidity, because not in writing, he must say so in his pleadings. But where, as in this case, the defendant denies the agreement, he throws on the plaintiff the burden of proving a valid agreement, capable of being enforced. (Ridgway v. Wharton, 3 DeG., McN. & God., 689; Ontario Bank v. Root, 3 Paige, 378; 6 B. Monr., 104; 2 Pars. on Cont., 548, note.)

It is not deemed necessary to discuss the questions arising in this case farther, as the conclusion we have arrived at disposes of it.

Because of the error in the ruling of the court the judgment is reversed, and the cause remanded for further proceedings.

Eeversed and remanded.