Moore v. Exelby

Hart, J., (after stating the facts). At the outset it may be said that it is well settled that a complete contract for the sale of lands binding under the statute of frauds may be gathered from letters between the parties relating to the subject-matter of the contract and so connected with each other that they may be fairly said to constitute one paper relating to the contract. In order to be sufficient, the letters relied upon must by reference to each other disclose every material part of a valid contract and must be signed by the party sought to be charged. Jn other words, the letters must set out the parties, the subject-matter, the price, the description, and terms, and leave nothing to rest in parol. Oral evidence may only be resorted to for the purpose of identifying the description contained in the writings, but not for the purpose of locating the land and supplying the description which the parties have omitted from the writings. Ashcraft v. Tucker, 136 Ark. 447; Stanford v. Sager, 141 Ark. 458, and cases cited; and Ryan v. United States, 136 U. S. 68. The plaintiff, who was the purchaser of the land, sought to have the contract specifically performed, and the chancery court sustained a demurrer to his complaint. In determining the sufficiency of a complaint as against a demurrer on the ground that the facts are insufficient to constitute a cause of action, the allegations must be taken as true. Moore v. North College Avenue Imp. Dist. No. 1, 161 Ark. 322. Under the practice in equity, exhibits to the complaint will control its averments and the nature of the cause of action, and may be looked to for the purpose of testing the sufficiency of the allegations of the complaint. The reason is that the instruments exhibited become for all purposes of pleading a part of the complaint, and consequently on demurrer may be used in aid of the defective statement in the complaint itself. This rule has been followed and applied by this court in various ways, according to the allegations of the 'complaint or the proof made in each particular case. In the Ashcraft and Stanford cases cited above it was held that the written contract relied upon for specific performance furnished no'data whatever which could be aided by extrinsic evidence to identify the land. In Dollar v. Knight, 145 Ark. 522, it was held that the written contract itself furnished the key by which the property might be identified with the aid of parol evidence. Again, in Kirby v. Malone, 145 Ark. 608, it was held that it is enough for specific performance that the written contract describes the farms sold by names; for these are capable of being made definite by extrinsic evidence. In Richardson v. Stuberfield, 168 Ark. 713, there was nothing in the contract to point out or locate the land. In the case at bar, if we take every part of the description in the letters, including the acreage and location, and give every part its due weight, we have a fixed and definite tract of land that must have been contemplated by the parties. The letters show that John Exelby and wife, Jennie Exelby, lived at Ranger, Texas, and R. P. Moore at Bald Knob, Ark. The letters indicate that from the beginning both parties definitely understood the tract of land which was the subject of their negotiations. In the letter of September 24, 1924, to R. P. Moore, John Exelby refers to it as the 80-acre tract of timber land that Jennie (his wife) still owned. In the next sentence he refers to the fact that no doubt Moore is well acquainted with it and its location. It is offered at a price of $1,500. He then said, “that 80 would make a good farm.” This showed he referred to a definite 80' acres of land. Again in the same letter he says that the growing of lespedeza has become quite a factor in the farming operations about Beebe. The court will take judicial notice that Beebe is located in White County, Ark., and this and other letters indicate that the land is situated near Beebe. The letter was so understood by R. P. Moore, who answered it on the 25th day of September, 1924. He made a counter offer “of $1,250 for the land and timber near Beebe belonging to your wife. ” On the 30th day of September, 1924, Exelby wrote another letter to Moore, holding out for $1,500 and stating that, while he knew that the timber was the main consideration with Moore, the land was really of some value because of its near location to the land of Moore. On the 21st day of October, 1924, Exelby again wrote Moore that his wife’s brother had advised her to accept his offer of $1,250 for the 80-acre tract of timber land, and asked if he would consider assuming the taxes on it. On the 12th day of December, 1924, Moore wrote Exelby that he had noted what he had said in his last letter with reference to his offer for the 80 acres if he would pay the taxes. Moore then offered to give him $1,225 and pay the taxes for the current year. The terms were $225 in cash and a note for $1,000 due on or before October 1, 1925. On December 17, 1924, Exelby wrote to Moore that his wife accepted his offer. These letters contained a definite contract to sell the land, and we think the chancery court should have held it enforceable. It is manifest that it is sufficiently definite with reference to the price and terms of payment. .It is manifest from the letters that Moore knew exactly what 80 acres of land he was buying and Jennie Exelby knew what she was selling through her husband, John Exelby. The land was described so that the court could, with the aid of extrinsic evidence, apply the description to the exact property intended to be sold. Looking at the letters, it must be assumed that both parties were dealing as to a particular 80-acre tract of land near Beebe owned by Jennie Exelby. The letters which constitute the contract identify and furnish the means of finding the land. The letters refer to a particular 80-acre tract of timber land still owned by Jennie Exelby near Beebe. It is inferable from the letters that this was the only tract of land in that vicinity which she still owned. Hence an ambiguity could not exist unless she could show that she had more than one tract of land in the vicinity of Beebe. It is not like a case where 80 acres of land are described. In such case it would be necessary for the plaintiff to show that the defendant had only one tract of land, and this would be supplying and adding to a description insufficient on its face. Where a party agrees to sell a particular 80 acres of land which is described as all the land owned by him situated near a certain town, extrinsic evidence may be used for the purpose of identifying the land and applying the description to the particular eighty. The defendants having described the land as an 80 acre tract of timber land that Jennie Exelby still owned and as being near Beebe, we think the description is as sufficiently definite as if it had been described as the farm on which she then lived, which has been held to be good. As above stated, it is clear from the letters themselves that a particular 80 acres of land which is described in the complaint according to the United States Government surveys, was the subject of the negotiations between the parties, and that the letters themselves furnish the means of finding the land. Carson v. Ray (N. C.), 78 Am. Dec. 267; Waring v. Ayers, 40 N. Y. 357; Lente v. Clark (Fla.), 1 So. 149; Hollis v. Burgess (Kan.), 15 Pac. 536; Lick v. O’Donnell, 3 Cal. 59, 58 Am. Dec. 383. In addition to the cases above cited, this principle has been applied by the court in Martin v. Urguhart, 72 Ark. 496, and Oliver v. Howie, ante p. 758. It is also insisted that the letter of R. P. Moore of the date of January 12, 1925, copied in our statement of facts, shows that the minds of the parties had never met, and that in that letter he was making a different offer which was never accepted by the defendants. We do not agree to this contention. That letter shows on its face that it was merely a recapitulation of the terms of a contract which had already been completed by a definite offer and acceptance. It is true that the date of the deferred payment is made on November 1, 1925, instead of October 1, 1925, as in, the original contract, but this was due, no doubt, to the fact that Moore had not kept a copy of the original letters or that he did not have them before him-when he wrote the letter restating the terms of the contract. Besides, if the contract had become a valid and binding one by a definite offer and acceptance by both contracting- parties, it could not be abrogated by one of the parties mistaking i'ts terms or proposing new ones. In passing it may also be stated that the complaint alleges that John Exelby was the agent of his wife to make a sale of the land in question for her, and the demurrer admits this allegation to be true. It was not necessary that authority to sell and make a binding contract for the sale of land to be in writing; for a-contract employing an agent to find a purchaser is not within the Statute of Frauds. McCurry v. Hawkins, 83 Ark. 202; Forrester Duncan Land Co. v. Evatt, 90 Ark. 301; and Davis v. Spann, 92 Ark. 213. The decree sustaining the demurrer is reversed, and the cause will be remanded with leave to the defendants to answer if so advised, and for further proceedings in accordance with the principles of equity, and not inconsistent with this opinion.