Gowen v. Klous

Gray, J. This is an action upon a contract of sale and purchase of land by auction. The defendant objects to the sufficiency of the declaration, and of the written memorandum which is made part thereof, in three particulars: 1st. The description of the premises; 2d. The statement of the price; 3d. The identification of the vendor. But the court is of opinion that neither of the objections is well founded. 1. The property sold is described in the memorandum as “ the lot or lots of land, situate at the corner of Columbia and Green Streets in Dorchester, belonging to the estate of Thomas Gowan, deceased,” “ delineated on a plan by L. Briggs,” and further described in the appended advertisement by referring to adjacent estates and to the means of access to the city of Boston. The lot for the price of which this action is brought is identified in the memorandum by its number, written opposite the defendant’s signature; and in the declaration as similarly numbered on a “ plan of fourteen desirable house lots in Dorchester, belonging [454] to the estate of the late Thomas W. Gowen.” The situation of the lot is thus clearly fixed; and if the plaintiff (as he alleges in one count of his declaration) is one of the heirs of Thomas W. Gowen, deceased, the description in the memorandum of the lands sold as “ belonging to the estate of Thomas Gowan, deceased,” contains no substantial variance. 2. The price of this lot is stated in the memorandum as “9¿ cts.;” and is alleged in the declaration to have been nine and a half cents for each square foot, being five hundred and seventy dollars for the whole lot. In the memorandum required to take a contract for the sale of lands out of the statute of frauds, the price may be stated in any words or figures which clearly indicate, as applied to the subject, what that price is. If the figures and letters used in this memorandum do in fact, and in the light of a prevailing usage, afford this information, the memorandum is sufficient; and whether they do or do not will be a question upon the evidence, when introduced. Salmon Falls Manufacturing Co. v. Goddard, 14 How. 446. Spicer v. Cooper, 1 Q. B. 424, and 1 Gale & Dav. 52. 3. The memorandum declares that the defendant has purchased “ of Eveline Gowan, guardian, and the heirs of Thomas Gowan,” land sold at.auction by Samuel A. Walker “by order of the probate court and heirs of the late Thomas Gowan,” or, as repeated towards the close of the memorandum, “ per order ot Eveline Gowan, guardian, &c.” The declaration alleges that the plaintiff owned the lot now in question, and caused it, with the other lots delineated on said plan, to be sold by auction upon the conditions set forth in the memorandum. If he can prove that he owned this lot, and that he authorized the guardian and heirs and the auctioneer to sell it, he may maintain this action. It is no objection to the sufficiency of the memorandum, that the seller therein named is but an agent of the real owner; and on proof of the agency the latter may sue or be sued on the contract made by his agent in his behalf. Lerned v. Johns, 9 Allen, 419, and cases cited. Hunter v. Giddings, 97 Mass. 41. Salmon Falls Manufacturing Co. v. Goddard, 14 How. 446. Hood v. Barrington, Law Rep. 6 Eq. 218. Demurrer overruled.