Scherck v. Moyse

Fletcher, J., delivered the opinion of the court. This is an action to charge the appellee upon the' following writing: “In consideration of $50 I hereby give P. T. Scherck a [263] fifteen-day option on 22,000 acres of timber land in Franklin and Jefferson counties, Mississippi, at $12.50 per acre. “9-23-07. [Signed] J. L. Moyse. “Attest: S. D. .Wilkinson. “We .will furnish a man to show parties the property. “[Signed] J. L. Moyse. “Attest: S. D. Wilkinson.” The declaration contains three counts, and states substantially that this option was given by appellee, and that it was understood terbally between the parties that certain named tracts of land were referred to, one lying' in Franklin and the other in Jefferson counties; that appellant paid $50 for the option, and expended considerable sums in having the lands examined and the timber estimated; that he had secured a purchaser, Avho would buy the lands at an advance of $1.50 an acre over the purchase price; that appellee did not own the lands at the time the option contract was signed, and had either failed or refused to secure the same; that there was a failure to deliver the lands, although the purchase money had been tendered; and that by losing the opportunity to make a re-sale appellant-had been damaged to the extent of $33,000; this being at the rate of $1.50 per acre on 22,000 acres. To this declaration a demurrer was interposed, and sustained, on the ground that the option memorandum is void under the statute of frauds, since there'is no sort of description of the property. It is obvious that the memorandum does not satisfy the statute, and equally obvious that parol testimony cannot be resorted to in order to -supplement the deficiencies in the written memorandum. Indeed, appellant practically concedes that specific performance of the contract could not be enforced; but it is claimed that it may form the basis of a suit for damages. We may dispose of this contention by saying that the only damages sought to be here recovered are the profits on a resale, and that these are not recoverable, except in a common-laAv action for fraud and deceit The declaration in this case Avas man [264] ifestly not drawn on that theory, since there is utterly lacking every averment essential to £uch an action. The rales both of pleading -and evidence governing this class of actions have lately been reviewed by this count in the case of Vincent v. Corbitt, ante 46, 47 South. 641, and need not be here repeated. The suit is clearly not such an action. Affirmed.