Weil v. Willard

Bond, J. This action is for a breach of the following contract executed between the parties hereto, to-wit: [377] “St. Louis, May 18, 1892. “Received of W. ó. Willard the sum of $50 in part payment for a certain parcel of improved property lying in city block number 258, and having a. front of twenty-nine feet on the east side of Tenth street by a' depth of one hundred and thirty-two feet, six inches, which property is this day sold to him for the total sum of $4,700, payable on terms of $1,000 in cash, and the remainder in one year, with interest at five per cent, per annum, payable annually, said deferred payments to be secured by deed of trust. It is agreed by and between the undersigned that the title to said property is perfect and will be ■ conveyed free from liens and incumbrances, except as to taxes for the year 1892, which the undersigned purchaser agrees to pay.. If, upon examination, the title proves to be defective and can not be made good within a reasonable time, the sale shall be off and the earnest money returned. “Agreed that Julius Weil have privilege to occupy said premises for the period of four months or less, at $30 per month rent, up to the time used. “'The said W. Gr. Willard is accorded twenty-five days time from this date in which to have the title investigated. “Signed and sealed in duplicate by the parties hereto. Wm. Gr. Willard, [seal] “Julius Weil. [seal]” _ The appellant alleges tender of performance of said contract on his part, and refusal by the respondent to accept such performance, whereupon the appellant asked for damages in the sum of $750. The answer of respondent was, first, a general denial; secondly, a plea of the statute of frauds. 1 The case was tried without a jury. The court gave judgment sustaining the defense of the statute, from which an appeal Was taken.' The only error assigned [378] is the action of the court in holding the contract sued on insufficient under the statute of frauds. The statute in question invalidates all sales of land, “unless the agreement * * * or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith.” Revised Statutes, 1889, sec. 5186. The rule of construction of this language is expressed by the supreme court in the following terms. “All the authorities are agreed that the memorandum must state the contract with reasonable certainty, so that its essential terms can be ascertained from the writing itself without a resort to parol evidence.” Ringer v. Holtzclaw, 112 Mo. 522. Accordingly, the law is that contracts required by the statute to be in writing, unlike other written contracts, can not, wtíen incomplete on their face, be aided or completed by parol evidence. The reason of the distinction is that contracts not required to be in writing would be good, if resting altogether in parol. Therefore, when it is apparent that a part only of such contracts have been reduced to writing, no rule of law is contravened by the reception of parol evidence of the remainder. On the other hand, if the contract is one within the statute' of frauds, and the agreement or memorandum is incomplete or deficient as to any essential part thereof, parol evidence can not be received to supply the omission, for this would nullify the terms of the statute. Ringer v. Holtzclaw, 112 Mo. 523; Miller v. Goodrich Bros. Banking Co., 53 Mo. App. 430; Rucker v. Harrington, 52 Mo. App. 481. The only question made in this case is as to the sufficiency of the description of the property contained in the contract. The descriptive words are as follows: “A certain parcel of improved property lying in city block, number 258, and having a frónt of twenty-nine [379] feet on the east side of Tenth street by a depth of one hundred and thirty-two feet and six inches.” This description gives the frontage, depth, the side of the street and the city block of an improved lot. It does, not give the width of the entire lot, nor its location in the block, nor its boundaries, nor its point of beginning, nor the city or state wherein it is situated, unless these may be inferred from the dating at the head of. the contract, to-wit, St. Louis, May 18, 1892. A valid contract for the sale of land must SO' describe it that it may be identified, or must refer to some “external standard” of description, whereby it can be identified by extrinsic evidence. Fox v. Courtney, 111 Mo. 150; Smith v. Shell, 82 Mo. 215; Shroeder v. Taaffe, 11 Mo. App. 267, affirming King v. Wood, 7 Mo. 389; Briggs v. Munchon, 56 Mo. 474; Springer v. Kleinsorge, 83 Mo. 152. We do not understand appellant to claim that the description, supra, of the land sold by its terms identifies the ’’land. But the contention is that in another clause of the contract there is a reference to an external matter, sufficient to describe and identify the land. This clause is, to-wit: ‘‘Agreed that said Julius Weil have privilege to occupy said premises for the period of four months or less, at $30 per month rent, up to time used.” o ■ • This clause does not in terms refer to an occupancy of the lot in question as a residence by Julius Weil before the making of the contract supra. Nor does it stat{3 whether he is in the future to occupy it as a residence or a place of business. It merely says, in substance, that he is to pay $30 per month for the occupancy thereafter of the lot sold to the respondent. This adds no new feature to the previous description of the lot set forth in the contract. A reference in 'the contract to its future occupaDcy cannot afford an [380] external standard whereby to identify the boundaries or location of the lot of ground at the time of the making of the contract. In order to have the effect of identifying the land sold, the external matters referred to for that purpose must be in themselves sufficiently definite, and must have been known and existing at and before the making of the contract. The clause under consideration is incomplete and deficient in not stating in effect that the lot sold was the one whereon Julius Weil then resided, or used in carrying on & particular and known business at the time of its sale. The omission of these or other equivalent statements was the omission of essential matter of description by external reference, and cannot be cured by parol evidence. We have seen that contracts required by the statute of fraud to be in writing-cannot be pieced out by parol as to essential statements omitted therefrom. See cases cited supra. As is said by the supreme court: “The description cannot be supplied altogether by parol. The writing must be a guide to find the land — must contain sufficient particulars to point out and distinguish the tract from any other.” Fox v. Courtney, supra. The decided bent of judicial opinion in this state is to uphold the statute of frauds. This purpose has been subserved by the recent overruling of two cases of a contrary tendency. Ringer v. Holtzclaw, 112 Mo. 523; Withnell v. Petzold, 104 Mo. 409. We do not think there is either such a direct description of the lot sold in the contract, or such a reference therein to external matters, as would “point out and distinguish the tract, from any other.” We, therefore, affirm the judgment of the trial court. All concur.