Sturm v. Dent

Ho'Uden, P. J., delivered the opinion of the court. The bill is to compel specific performance of a contract to convey 'certain land by appellee to appellants. The written memorandum upon which is based the right to require performance is here quoted: *652 “Prin. $1,000.00 “Int.--- ' Gulfport, Miss., 4 — 22—-25. “Received of Ben Lauchley one thousand and no/100 dollars earnest money on purchase of lots from J. R. Dent. Lots 16 and 17, block 180, Orig. Gft. “A. P. Sides, Agt., ' “For J. R. Dent.” The lower court sustained a demurrer to the bill, on the ground that the written memorandum evidencing the contract of sale was insufficient to require specific performance, in that it failed to definitely state the terms of the sale as required by our statute of frauds. The appeal presents that single question, for our decision. It will be observed that the written memorandum fails to state the purchase price of the land and the terms of its payment. The complainants allege in their bill that there was an oral agreement between the parties that the purchase price was twelve thousand five hundred dollars, to be paid as follows: five thousand dollars cash upon the delivery of the deed conveying the property, and the balance to be paid in one and two years evidenced by notes bearing six per cent interest from date. The bill also charges that the contract was made with one A. P. Sides, the authorized agent of Dent, and that Sides received the one thousand dollars as earnest money and delivered it to Dent who retained it; and that thereafter the abstract of title was delivered by Dent to appellants, and that appellants accepted the title and so notified Dent, who refused to carry out the. contract to convey. Counsel for appellants contend that the written memorandum here involved was sufficient to compel specific performance, and that it does not come within the statute of frauds because the terms of the sale are definitely stated except as to the purchase price, and that under our statute of frauds the purchase price may be shown by oral testimony where the written contract for the sale identifies the parties and the land to be conveyed and the consideration-for the “promise or agreement” appears. *653 The argument of counsel to sustain this position is not without force, and as an original proposition it would deserve serious consideration; but the law in this state has been settled adversely to the contention of appellants by many decisions of this court during the past century, and for that reason we must view as untenable the theory presented by the appellants, otherwise it would necessitate the overruling of the cases which have settled the question beyond controversy. The last case on the subject, Nickerson v. Land Co., 80 So. 1, 118 Miss. 722, is clearly decisive of the question presented in the case at bar, and is therefore controlling. The theory of counsel for the appellants upon which the statute of frauds is attempted to be evaded, and specific performance compelled under the written memorandum which is the basis of the suit, may be of interest, and for that reason we shall briefly state it. It is contended that our statute, section 3119, Hemingway’s Code, providinig for the written memorandum of the “promise or agreement,” is unlike the English statute in that the latter does not contain the word “promise” but only uses the word “agreement,” and that under our statute which includes the word “promise,” and is a rescript of the Virginia statute, many courts have held that the purchase price to be paid for the land need not be stated in the memorandum but may be shown by oral testimony. It is argued that the courts, including our own and the supreme court of the United States, have held that where the word “promise” is coupled with the word “agreement” it is unnecessary for the written memorandum to state the purchase price, but that this essential may be shown by oral testimony. The cases cited in support of this view are Wren v. Pearce, 4th Smedes & M. 91, and Violett v. Patton, 5 Cranch, 142, 3 L. Ed. 61. "We have examined the Wren case, supra, and we entertain considerable doubt as to whether this case supports the contention of counsel for the appellant. Upon *654 a careful reading of the Wren case, it will be detected that Wren guaranteed the payment of a stated account of one hundred twenty-five dollars by writing at the foot of the account, “I guarantee the payment of the above,” and signed it. The court held that this memorandum in writing to pay the debt of another was sufficient, and it was unnecessary under the statute of frauds “that the consideration of the promise should be in writing. ’ ’ Does it not appear that the court had in mind that the “consideration for the promise” of the guarantor need not be in writing? But would the court have held that the “consideration” or purchase price of the land should not be stated in the writing as a part of the terms of the contract of sale? A difference is apparent between a suit for specific performance and one in assumpsit to recover against an indorser or guarantor. The later decisions of this court, which hold that the description of the land and the price to be paid for it must be definitely stated in the written contract to convey, never referred to the Wren case as being a contrary holding, and this fact is rather persuasive that our courts for the past eighty years have either overlooked the Wren case or else that decision was construed to mean that it was unnecessary for the written memorandum to show the consideration to the guarantor for “the promise or agreement,” and that it does not hold that the purchase price is not required to be stated in the written memorandum of the contract for the sale of land. But, at all events, the Wren case, if it holds what counsel contends that it does, has long since been impliedly overruled by many cases in this court. The Violett ease, supra, a federal decision, is cited to support the theory advanced by counsel for appellants, and the writer in the Wren ease, supra, cites the federal case as authority for the holding in that case. But in the Violett case the suit was to hold Violett as indorser of a promissory note, and we are inclined to think, though we are not sure, that the court in the Violett case was speaking of the “ consideration to the indorser for the *655 promise ”'only, just as in the Wren case, because the terms of the obligation, to-wit, the amount of the note, are distinctly stated. However, we see no good purpose to serve in further attempting to differentiate in these oases, because the rule is clearly stated by our court that the terms, including the purchase price of the land, must be stated in the “promise or agreement” to sell. The theory of counsel for the appellant that a written contract to convey which contains all the requisites except the amount of the purchase price ought to be binding on the seller, and that the purchaser should be allowed to show the purchase price by oral testimony, is not an unreasonable proposition; and if it were a question of first impression in this state it might be viewed with favor; but the rule to the contrary having been established by this court for such a great length of time, it is now too late to consider a change. Waul v. Kirkman, 27 Miss. 823; Scherck v. Moyse, 48 So. 513, 94 Miss. 259; Willis v. Ellis, 53 So. 498, 98 Miss. 197 Ann. Cas. 1913A, 1039; Fisher v. Kuhn, 54 Miss. 480; McQuire v. Stevens, 42 Miss. 724, 2 Am. Rep. 649; Holmes v. Evans, 48 Miss. 247, 12 Am. Rep. 372; Giglio v. Saia (Miss.), 106 So. 513. The decree of the lower court is affirmed. Affirmed.