Summary
discussing G.C. 8621, now codified as R.C. 1335.05
Summary of this case from Bank of N.Y. Mellon v. RhielOpinion
No. 30813
Decided February 26, 1947.
Specific performance — Contract to sell real estate — Written memorandum, signed by party to be charged, sufficient — Section 8621, General Code — Amended petition stated cause of action against demurrer — Deposit accepted, premises described and total consideration stated.
CERTIFIED by the Court of Appeals for Summit county.
This action for specific performance of a contract to sell and convey real property was instituted by appellants, Russell B. Sanders and Florence M. Sanders, hereinafter designated as plaintiffs, against appellee, Joseph R. McNutt, also known as J.R. McNutt, hereinafter designated as defendant.
The petition and amended petition were filed in the Court of Common Pleas of Summit county. In the amended petition it is alleged that on March 5, 1945, the defendant was the owner in fee simple of a certain parcel of real property situated in Franklin township, Summit county, Ohio, which is described therein by metes and bounds; that such parcel is known as 4228 New Portage road; that on said day defendant entered into a verbal agreement with plaintiffs wherein defendant promised to convey such premises to plaintiffs in consideration of the sum of $12,500 to be paid him as follows, $300 in cash (which was paid at the time) and the balance to be paid at the time of delivery of a good and sufficient deed to the premises; that plaintiffs were at all times ready, willing and able to consummate such agreement but defendant has failed and refused to execute and deliver his deed for such premises; that at the time of such agreement a memorandum was made which reads as follows:
"3/5/45"Received deposit of $300 on property located at 4228 New Portage road as binder on sale totalling $12,500, balance to be paid at time of transfer of clear title.
"(signed) J.R. McNutt";
and that plaintiffs are still ready and willing to consummate such agreement.
The prayer of the petition is "that defendant be decreed to convey said premises to plaintiffs by general warranty deed."
To the amended petition the defendant filed a motion to strike, which was later withdrawn and a general demurrer was filed "on the ground that said petition does not state facts which show a cause of action."
The court sustained the demurrer and, plaintiffs not desiring to plead further, judgment was rendered in favor of defendant.
On appeal on questions of law the judges of the Court of Appeals agreed upon a judgment of affirmance and finding their judgment to be in conflict with a judgment pronounced upon the same question by the Court of Appeals of the Seventh Appellate District in the case of Schafer v. Faylor, 74 Ohio App. 533, 60 N.E.2d 339, certified the record to this court for review and final determination.
Messrs. Davis Lipps and Mr. Fred G. Cain, for appellants.
Mr. Ralph Burroughs, for appellee.
The sole question to be determined is whether the amended petition alleges facts sufficient to constitute a cause of action.
The answer to that question depends in part upon the proper construction of certain language found in Section 8621, General Code, as follows:
"No action shall be brought whereby to charge the defendant * * * upon a contract or sale of lands * * * unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized." (Emphasis added.)
The statute (Section 8621, General Code) was conceived and enacted to prevent fraud and perjury.
Plaintiffs claim that the paper writing dated March 5, 1945, and signed by the defendant is a sufficient compliance with the statute. Defendant claims the contrary. The insufficiency relied upon by the defendant is in the matter of description.
The Court of Appeals was of opinion that the memorandum pleaded was insufficient for the reason it did not indicate the city, county or state wherein the property is located.
There can be no dispute upon the proposition that the memorandum must contain a description of the property. However, we are not prepared to hold that the property must be described with the particularity used in a deed or a formal contract. To so hold would render nugatory the provision of the statute that "unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith."
Keeping in mind that the instant case has not been tried and that we are now called upon to determine only the sufficiency of the amended petition as against a general demurrer, our consideration is not limited to the memorandum alone but to all the averments of such petition. It is alleged therein that defendant owned a certain parcel of land situated in Franklin township, Summit county, Ohio, which is described by metes and bounds; that such premises are also known as 4228 New Portage road; and that defendant agreed to sell and plaintiffs agreed to buy the described premises for the sum of $12,500 — $300 cash and the balance at the time of delivery of a good and sufficient deed. The memorandum discloses that the defendant acknowledged receipt of $300 as a binder on the sale of property located at 4228 New Portage road, total purchase price to be $12,500. The truth of those allegations are admitted by the demurrer.
In the case of Heaton v. Eldridge Higgins, 56 Ohio St. 87, at pages 100 and 101, 46 N.E. 638, 60 Am. St. Rep., 737, 36 L.R.A., 817, it is said:
"The language of the statute under consideration, that no action shall be brought on any agreement therein mentioned, unless it, or 'some memorandum or note thereof is in writing and signed by the party to be charged,' fairly imports that the agreement precedes the written memorandum, and may exist as a complete and valid agreement, independent of the writing. The memorandum, which is merely the evidence of the contract, may be made and signed after the completion of the agreement, and even a letter from the party to be charged, reciting the terms of the agreement, is sufficient to satisfy the requirements of the statute; but it cannot be said that the letter constitutes the agreement; that was made when the minds of the parties met with respect to its terms, and the letter furnishes the necessary evidence to prove the agreement in an action for its enforcement."
The court there was considering a statute then numbered Section 4199, Revised Statutes, now Section 8621, General Code.
We think this amended petition discloses that there was a concluded agreement between the parties. It is quite clear from the facts alleged that defendant intended to sell the parcel of land located in the aforesaid township, county and state, known as 4228 New Portage road, for the sum of $12,500, and that the plaintiffs intended to buy that parcel.
In view of the facts and circumstances (alleged and admitted by the demurrer to be true) preceding the making of the paper writing and the signing thereof by defendant, we conclude that the terms of the contract to sell are reasonably set forth; that the property is sufficiently identified as against a general demurrer; and that under the averments of the amended petition evidence may be adduced to prove that it was the plaintiffs and the defendant who entered into the agreement for the purchase and sale of the property involved.
It follows that the judgment of the Court of Appeals affirming the judgment of the Court of Common Pleas should be and hereby is reversed, and the cause is remanded to the Court of Common Pleas with instructions to overrule the demurrer and for further proceedings in accordance with law.
Judgment reversed.
TURNER, MATTHIAS, BELL and SOHNGEN, JJ., concur.
WEYGANDT, C.J., and ZIMMERMAN, J., dissent.
HART, J., not participating.
Since the memorandum of the agreement relied on by the plaintiffs is quoted in the statement of facts preceding the majority opinion, it will not be repeated.
There is a division of authority on the question of whether the memorandum of an agreement covering the sale of real property located in a municipality is sufficient to meet the requirements of the statute of frauds where the premises involved are described only by street and number, without any further identification. Some cases hold that the failure to designate the city and state is not a serious defect and that such omissions may be supplied by extrinsic evidence or by inference, while others take the opposite view. This matter is discussed, with the notation of conflicting authorities, in the case of Montgomery v. Graves, 301 Ky. 260, ___, 191 S.W.2d 399, 402. See, also, 37 Corpus Juris Secundum, 673, "Frauds, Statutes of," Sections 187 and 188, and the cases cited in the notes.
However, another reason exists which makes the memorandum of the agreement upon which this action is based fatally defective. Such reason is that the buyer or buyers of the property are not mentioned or referred to in any way in the instrument.
The first paragraph of the syllabus in the case of Kling, Admr., v. Bordner, 65 Ohio St. 86, 61 N.E. 148, reads as follows:
"The memorandum in writing which is required by the statute of frauds (Section 4199, Revised Statutes), is a memorandum of the agreement between parties; and it is not sufficient unless it contains the essential terms of the agreement expressed with such clearness and certainty that they may be understood from the memorandum itself or some other writing to which it refers, without the necessity of resorting to parol proof."
In 1 American Law Institute's Restatement of the Law of Contracts, 278, Section 207, it is said:
"A memorandum, in order to make enforceable a contract within the statute, may be any document or writing, formal or informal, signed by the party to be charged or by his agent actually or apparently authorized thereunto, which states with reasonable certainty,
"(a) each party to the contract either by his own name, or by such a description as will serve to identify him, or by the name or description of his agent, and
"(b) the land, goods or other subject matter to which the contract relates, and
"(c) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made."
The leading case of Peoria Grape Sugar Co. v. Babcock Co. (C. C.), 67 F., 892, was decided under a statute providing that a written memorandum of the bargain made must be signed by the party to be charged thereby or by his lawfully authorized representative. In its opinion, the court used this forceful and unmistakable language:
"The note or memorandum in, writing of the bargain * * * must disclose with substantial accuracy every fact material to constitute a contract of bargain and sale. It is, therefore, essential that such a note or memorandum shall contain within itself a description of the property agreed to be sold, by which it can be known or identified, of the price to be paid for it, of the party who sells it, and of the party who buys it. It is settled to be indispensable that the written memorandum should show, not only who is the person to be charged, but also who is the party in whose favor he is charged. The name of the party to be charged is required by the statute to be signed, so that there can be no question of the necessity of his name in the writing. But the authorities have equally established that the name, or a sufficient description, of the other party is indispensable, because Without it no contract is shown, inasmuch as a stipulation or promise by one does not bind him, save only to the person to whom the promise was made, and, until that person's name is shown, it is impossible to say that the writing contains a memorandum of the bargain."
There can be no valid memorandum of a contract within the statute of frauds which does not disclose who are the contracting parties. Sanborn v. Flagler, 91 Mass. (9 Allen), 474, 476.
This question is the subject of an annotation in 70 A. L. R., beginning at page 196, and the following comments made in that annotation, supported by many cases, are significant:
"It is the general rule that, to satisfy the requirements of the statute of frauds, there must be some writing identifying the contracting parties."
"In accordance with the view expressed by the courts in the cases heretofore considered, that a memorandum for the sale of property, to be sufficient to satisfy the statute of frauds, must identify the parties, it is clear that such a memorandum is insufficient unless the buyer or vendee is therein identified, even though his signature to the memorandum is not essential because he is not the party sought to be charged."
See 37 Corpus Juris Secundum, 677, "Frauds, Statute of," Section 193; 49 American Jurisprudence, 649, Section 337.
It may be superfluous to add that "parol evidence is not admissible to, supply a deficiency in the memorandum with respect to the parties to the contract, although such evidence is admissible to show to which parties the memorandum applies and to identify a party described but not named." 37 Corpus Juris Secundum, "Frauds, Statute of," Section 282, at page 813.
In my opinion, the demurrer to the amended petition was properly sustained and the judgments of the lower courts in favor of Joseph R. McNutt were right. Where the record shows that the judgment of a court is in fact correct, the reasons assigned therefor are immaterial. 23 Ohio Jurisprudence, 816, Section 512.
WEYGANDT, C.J., concurs in the foregoing dissenting opinion.