Tice v. Freeman

Vanderburgh, J. Action for specific performance. The memorandum constituting the contract relied on, consists of letters between [391] the parties. The defendant’s contention is that the land which is the subject of the controversy is not described in the alleged contract. The writing upon which defendant is sought to be charged is a letter dated December 26, 1881. It contains no description of the land, and is in reply to a letter from plaintiff’s agent, not produced in evidence, and makes no reference to any other writing or letter. A previous letter of plaintiff’s agent to defendant, in relation to the price of the land, describing it, was introduced, but there is nothing on the face of these writings showing any connection or relation between them. Parol evidence was offered and received, against defendant’s objection, to show such relation, and that the proposition contained in defendant’s letter had reference to the land described in the letter of the agent last above mentioned. The subject-matter of the contract must appear from the memorandum, and the land must be so described that it may be identified. Browne on Stat. of Frauds, § 385. Its location and identification may be by parol. Thus, in Sanborn v. Nockin 20 Minn. 163, (178,) the plaintiff, by letter, offered to buy five acres, owned by defendant, in a certain section. This offer was accepted in writing, and a valid contract established. The writing contained a description, but a question might be raised as to its sufficiency. In such case, however, it would be competent to identify, by extrinsic evidence, the five acres owned by defendant in the section, if he owned but one five-acre tract, and to show the identity of different forms of description of the same land. Ames v. Lowry, ante, p. 283; Hurley v. Brown, 98 Mass. 545. The connection and relation of several writings assumed to constitute one contract must appear on their face, either from the nature of their contents or subject-matter, or by reference, and cannot be shown by parol. Browne on Stat. of Frauds, § 348; Ridgway v. Ingram, 50 Ind. 145, and cases cited; Sanborn v. Nockin, supra. The memorandum relied on in this case consisted of the above-mentioned letters introduced in evidence, and it was error to receive parol evidence to show their relation to each other. If relevant for such purpose, the letter to which defendant’s proposition was a reply should have been introduced. Parol evidence, showing the fact of the delivery [392] and receipt of the several writings, including time, place, situation of property and parties, and other circumstances, may be received to aid in the interpretation of the contract, but the essential terms of the writing required by the statute of frauds cannot be supplied by oral testimony of what the parties intended or understood. As to plaintiff’s tender of performance we think it was sufficient and in season. It does not appear that, up to that time, either party had been put in default. It was not necessary to keep the tender good. The proper provisions could be inserted in the judgment, so as to protect the opposite party. Order reversed.