Riley v. Farnsworth

Gray, C. J. This court has no jurisdiction on appeal from the the Superior Court under the Gen. Sts. c. 114, § 10, until after a final judgment disposing of the whole case in the court below. The judgment for the plaintiff in the present case is not final, because it leaves the question of damages open. Upon the hearing of that question, it may appear that the plaintiff in fact sustained no damages, or that they were so trifling in amount that the defendant may not choose to appeal from the final judgment for the plaintiff, or an appeal may be taken by either party upon matters of law involved in the assessment of damages. Bennett v. Clemence, 3 Allen, 431. Commonwealth v. Gloucester, 110 Mass. 491. The Palmyra, 10 Wheat. 502. Appeal dismissed. The case was then re-submitted to the Superior Court on the above facts; judgment was rendered for the defendant, and the plaintiff appealed. H. C. Hutchins, for the plaintiff. E. S. Mansfield, (C. Allen with him,) for the defendant. Morton, J. The memorandum in writing required by the statute of frauds must contain all the essential terms of the con [226] tract, so that the court can ascertain the rights of the parties from the writing itself without resorting to oral testimony. Tested by this rule it is clear that the memorandum signed by the defendant through his agents, the auctioneers, is not a compliance with the statute. It does not purport to give all the terms of the contract. It states that the plaintiff was the highest bidder and purchaser of house 23 Pine Street for the sum of $3850 ; that he had paid to the auctioneers $300 as a deposit, and in part payment of the purchase money, and that the defendant agrees to “ fulfil the conditions of sale.” These conditions were stated orally by the auctioneers at the sale, and it cannot be known except by recourse to oral testimony what they were. It is impossible to ascertain from the writing itself what the defendant has promised to do. But the plaintiff contends that the “ purchaser’s agreement ” signed by him should be construed together with the writing signed by the defendant, and the two be regarded as constituting one memorandum. We have not deemed it necessary to consider this question, because we are of opinion that if the two writings can be construed together the same difficulty remains. Both writings refer to the oral conditions of sale as a part of the contract, and we cannot ascertain what conditions are to be performed by both parties without resorting to parol proof. The two together do not purport to, and do not in fact, state all the conditions. The present plaintiff, in his answer in the case of Roche v. Farnsworth, the record of which is made part of this case, alleges that one of the conditions stated at the sale was that fifteen days were to be allowed to the purchaser “ to make examination of the title to said estate and to ascertain if the same was good when a deed of said estate was to be made to the purchaser.” What this condition was, or what other conditions there were, can only be ascertained by paroi proof. Whether they amounted to an unconditional agreement by the defendant, either expressly or by implication, that he would give a deed which would convey a good title, cannot be determined from the writings. It would be competent for the defendant to show by paroi, without controlling or varying the written memorandum, that the conditions of sale did not import such a contract. The difficulty is that the contract of the parties was partly in writing and partly by paroi and the court cannot determine whether the defendant is liable, [227] or if liable to what extent, without resorting to paroi testimony to ascertain what were the conditions orally stated by the auctioneers at the sale. We are therefore of opinion that the memorandum is not sufficient within the statute of frauds. As this is decisive against the plaintiff’s right to maintain this action, it is not necessary to consider the other questions raised. Judgment for the defendant.