Peck v. Osborn

HENRY, J. In tbis appeal a motion for judgment was made by tbe defendant at tbe close of the plaintiff’s evidence upon tbe ground that tbe writing by which tbe plaintiff endeavors to prove tbe contract for tbe sale of real estate herein sought to be specifically enforced is insufficient under the statute of frauds. We took tbis motion under advisement to see if tbe case is not substantially ruled by a former decision of tbis court rendered in February or March of tbe January term, 1902, in tbe case of Power v. Heinze, No. 3332, affirmed, no opinion, 74 Ohio St. 502. Upon examination of that case we find that writing then held sufficient presented practically tbe same difficulties as that in tbe case now before us, save that tbe mutual promises to purchase and sell were there more explicit. Tbe location of tbe property and tbe amount to be paid therefor were very meagerly expressed in tbe receipt for tbe down payment, which was tbe writing relied on. In holding a similar receipt sufficient now we do not go beyond that case except in inferring mutual promises to buy and sell from the express mention of a “consideration” or “purchase price,” upon which tbe down payment is to apply and inferring that Mrs. Osborn who receipted for tbe money is the seller and Mrs. Peck from whom the money is expressed to have been received is the purchaser. In making these inferences we but follow the same rule of reasonable presumption that was applied in Power v. Heinze, supra. The same rule of construction was thus applied in the case of Eppick v. Clifford, 6 Colo. — 627 — 493, which is on all fours with the case before us. Although there is some contrariety of authority on this question, we conceive that our Supreme Court has settled the rule in this state. We will exclude all evidence offered by the plaintiff except that adduced to identify the parties and prove the execution of the following document, and such further evidence as the plaintiff may care to introduce to identify the property mentioned therein with that described in the petition. Upon production of this evidence the motion for judgment will be overruled. The writing referred to is as follows: ‘ ‘ CLEVELAND, Ohio, Feb. 4,1907. “$50.00 “Received of T. T. Lewis, account E. Peek, Fifty.. Dollars to apply on purchase price of 1840 E. 82d St. “ Consideration $8375.00. “Elizabeth D. Osbobn.” Marvin and Winch, JJ., concur.