John F. Fowkes Manufacturing Co. v. Metcalf

Barker, J. We are of opinion that the order sustaining the demurrer, and the judgment for the defendant thereon, should be affirmed, because the writings constituting the memorandum of the defendant’s agreement are not sufficient to satisfy the statute of frauds. Pub. Sts. c. 78, § 1, cl. 4. These writings are three in number, and the first indicates that the defendant agreed to lend the plaintiff three thousand dollars upon a second mortgage above a twelve thousand dollar mortgage referred to in the first writing. Assuming that the twelve thousand dollar mortgage could be identified by parol, and that the fair construction of this writing is that the land to be mortgaged is that covered by the first mortgage, the declaration shows that the mortgage to the defendant was to cover in addition a right of way to be acquired by the plaintiff; and in none of the writings are there any words sufficient to identify this right of way. It appears from the declaration that this was a material element in the contract, and if the writings signed by the defendant do not identify it, either by themselves or by the contents of other writings referred to therein, when taken in connection with the circumstances under which [599] the writings were made, they are not a sufficient memorandum under the statute. The writings signed by the defendant say, “ Don’t forget to mention in the mortgage the right of way over the new property you spoke of,” and “ I wrote last night about the driveway you said would go with the mortgage, and some other things that I suggested.” They refer to no writing describing or defining this right of way or driveway. It appears from the declaration that it was not a way then appurtenant to the land covered by the twelve thousand dollar mortgage, and so not made certain or described by the reference to that mortgage. No other writings are referred to in those signed by the defendant. The only reference, therefore, through which a description of the right of way or driveway can be arrived at is to oral statements of some person representing the plaintiff, and who upon, some occasion spoke of the right of way, and said that the driveway would go with the mortgage. There are no allegations im the declaration upon which it could be found that some definite-right of way or driveway was meant, and that only that right of' way or driveway could, under the situation of the parties, have-been referred to. On the other hand, it is evident that the right to be put into the mortgage did not then exist, and that to be put into the mortgage it must be created by grant of some third person, who could be identified only by parol evidence. The reference to oral statements as in themselves a description of the property is of course of no avail, and it cannot be found from the position of the parties and their relation to the property that some specific way only must have been intended. See Ryder v. Loomis, 161 Mass. 161; Freeland v. Ritz, 154 Mass. 257; Sherer v. Trowbridge, 135 Mass. 500. Nor is the general allegation sufficient that the plaintiff, relying on the contract, was doing and performing all that he was required to do on his part under it. Graves v. Goldthwait, 153 Mass. 268, and cases cited. In placing our decision upon this point we do not consider whether the writings were also insufficient because they did not state the purposes to which, by the agreement set out in the declaration, the money to be lent was to be in part applied. Nor do we intimate that a way belonging to one parcel of land can be made to attach to another distinct parcel by the purchase by the [600] owner of the latter of the land to which the way belongs; nor that consequential damages, such as those alleged in the declaration, can be recovered for breach of a contract to lend money. Demurrer sustained, and judgment for the defendant affirmed.