Baylor v. Tolliver

Morris, J. — The lower court dismissed appellant’s action to recover commissions for the sale of real estate under a written contract, upon the ground that the contract did not con [258] tain a sufficient description of the real estate to satisfy the statute of frauds, Rem. & Bal. Code, § 5289 (P. C. 203 § 3), providing that agreements employing agents to sell real estate for a commission shall be void unless the agreement, or some note or memorandum thereof, be in writing signed by the party charged. The description in the contract is as follows: “. . . my property, including (121) one hundred and twenty-one acres of land near Ephrata, and appurtenances, water right, water contract with the city of Ephrata, etc. etc.” This description is insufficient, and the ruling of the lower court must be sustained, under the authority of Cushing v. Monarch Timber Co., 75 Wash. 678, 135 Pac. 660, and Thompson v. English, 76 Wash. 23, 135 Pac. 664, and cases cited. It is clear that the description given in the contract cannot apply to any definite property without resorting to parol testimony. It was said in the Cushing case: “Parol evidence may be resorted to for the purpose of applying the description contained in a writing to a definite piece of property and to ascertain its location on the ground, but never for the purpose of supplying deficiencies in a description otherwise so incomplete as not to definitely describe any land. The description must be in itself capable of application to something definite before parol testimony can be admitted to identify any property as the thing described.” Appellant accepts this test and contends that, inasmuch as Ephrata is a small country town of well-known location, any one conversant with property holdings in that vicinity could easily identify the Tolliver ranch of 121 acres, having water contract with the town of Ephrata. That may be accepted, but that is not the description in the contract. In reading a contract, every word must be given some meaning and interpreted as though used by the parties for a particular purpose indicating their meaning and intent. This description is not confined to the Tolliver 121 acres near Ephrata, but includes other property of unknown descrip [259] tion. The 121 acres is only a part of the property described. We cannot eliminate the words “my property including,” and we have an incomplete description of the Tolliver property of which the 121 acres is only a part. What part? and, since “my property” includes 121 acres as a part, how many acres are included in the whole? No other meaning can be given to this language, without the aid of parol testimony, than that the property involved contained more than 121 acres, as the 121 acres is included as a part of the whole acreage. Again, what is meant by “etc. etc. ?” The parties used that expression for some purpose. What purpose? Does it include property? If so, what property, and how is it to be determined except by parol testimony? “Etc. etc.” means something or nothing. It would require parol testimony to determine which. No one could definitely determine the property included in this contract without first ascertaining the meaning of these expressions, in addition to ascertaining the meaning intended in the description “my property, including 121 acres.” Appellant contends that the correct rule is that the description is sufficient if it meets the requirements of a sufficient description under any other phase of the statute of frauds, as when invoked in actions for specific performance. We admit this to be the correct test, and as such it was laid down in the Cushmg case. Under this phase of his argument, appellant contends that the description here is analogous to those contained in the following and other like cases where the descriptions are held sufficient: “The ‘Byers place’(Ranney v. Byers, 219 Pa. 332, 68 Atl. 971, 123 Am. St. 660). “We agree to purchase of H. his place at S. containing 15 acres more or less(Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979, 7 L. R. A. 87). “A house and lot on Amity street, Lynn, Massachusetts;” (Hurley v. Brown, 98 Mass. 545, 96 Am. Dec. 671) ; “Our farm in LeClaire’s reserve, Rock Island county, and consisting of 83.31 acres more or less;” (Guyer v. Warren, 175 Ill. 328, 51 N. E. [260] 680.) In each of those cases, we find a description capable of definite ascertainment sufficient, with the aid of parol testimony, to identify the description with its location on the ground. In order to be apposite, those descriptions should read, “My property, including the Byers place, etc.“the property of H. including his place at S. containing 16 acres more or less, etc.“my property including a house and lot on Amity street, etc.“our property including our farm in LeClaire’s reserve, etc.” Or this description would have to read, “My farm at Ephrata containing 121 acres more or less.” Whatever may be said of the sufficiency of this latter description, it is not the description in the contract, and we apprehend a different rule would have been announced in the cited cases had the descriptions there interpreted contained the additional words, “my property, including-etc.” We, therefore, hold the description is insufficient to satisfy the statute, and the judgment is affirmed. Crow, C. J., Parker, and Mount, JJ., concur.