Burke v. Ray

Gtlutllan, C. J. Specific performance of an oral agreement to convey lands will not be enforced unless the contract is clearly proved, both as to the fact of making it and as to its terms. The statement of the court below, in its findings of fact, that it is unable to determine from the evidence what the terms of the agreement between plaintiff and defendant were, is not only justified by the evidence, but it is a finding, in effect, that the allegations of the complaint as to the terms of the agreement are unproved; in other words, that those allegations are untrue. It would have been in better form had the findings distinctly stated that those allegations are untrue, but such is its effect. Of course specific performance could not be decreed on such a finding. It was proper to admit oral evidence contradicting the written receipt. The receipt, being only an admission, and therefore evidence of a fact, is no higher evidence of the fact than the testimony of a witness. It is only when, and so far as, the receipt includes a contract, that it cannot be explained or contradicted by parol. Judgment affirmed.