Chellis v. Grimes

Walker, J. The statute of frauds (P. S., e. 215, s. 1) provides that “ no action shall be maintained upon a contract for the sale of land unless the agreement upon which it is brought, or some memorandum thereof, is in writing and signed by the party to be charged, or by some person by him thereto authorized by writing.” In this case the defendants signed a writing agreeing to convey their homestead and certain personal property to the plaintiffs, in consideration of the plaintiffs’ agreement to build five houses for them on lots of land which “ Grimes is to pick out of *339 any of those ” on a certain tract of land owned by the plaintiffs. It seems to be well settled in this state that the consideration of the undertaking of “the party to be charged,” upon an executory contract, must be stated in the memorandum with some degree of definiteness. Underwood v. Campbell, 14 N. H. 393; Phelps v. Stillings, 60 N. H. 505. The memorandum “must be sufficient to identify the parties, land, and price, without resort to parol evidence.” Rafferty v. Lougee, 63 N. H. 54, 56; Sherburne v. Shaw, 1 N. H. 157; Wain v. Warlters, 5 East 10. “ Unless the essential terms of the sale can be ascertained from the writing itself, or by reference in it to something else, the writing is not a compliance with the statute; and if the agreement be thus defective, it cannot be supplied by parol proof, for that would at once introduce all the mischiefs which the statute was intended to prevent.” Brown v. Whipple, 58 N. H. 229, 232. The plaintiffs’ declaration discloses the fact that the land from which the defendants were to select five lots had not been lotted at the time the written agreement was made; the defendants could not at that time exercise their right of selection, because it does not appear that they could make the allotment; and until it was made, the land they were to purchase was indefinite. If the promise to convey the five lots to be selected by the defendants after a subsequent allotment by the plaintiffs would be valid, as a consideration for the defendants’ promise to convey their homestead to the plaintiffs, — if that was the actual contract, as claimed by the plaintiffs, — it is plain that the memorandum is so indefinite as to leave a substantial part of the agreement to be supplied by parol evidence. It cannot be inferred from the writing that the right to make a subsequent allotment, and to practically locate the five lots of the specified dimensions in an undesirable part of the tract of land, was to be reserved and exercised by the plaintiffs. If by reason of the indefiniteness of the consideration, as stated in the writing, parol evidence of that character were admissible, the statute would be a very inefficient means of preventing frauds and perjuries. The written evidence of the contract which the statute requires does not support the plaintiffs’ contention. In the view most favorable to them, their agreement was to convey certain lots of land which were to be of specified dimensions; the location of the land was not made definite by reference to other documents, nor was it possible for the defendants to locate the land which should coincide with the five lots which might be included in the plaintiffs’ subsequent plan of lots. The description in the memorandum, which might have been sufficiently exact if there had been an allotment to which the description could refer, is wholly vague and indefinite in the absence of such allotment. As the *340 agreement contains no stipulation in regard to a future survey of the land and the designation and location of lots thereon, it does not express with sufficient clearness the intention of the parties or the consideration for the defendants’ promise. Exception overruled. All concurred.