Carskaddon v. City of South Bend

39 N.E. 667, 141 Ind. 596, 1895 Ind. LEXIS 323

• Court: Indiana Supreme Court
• Decided: February 6, 1895
• Docket: No. 17,176
• Status: Published

Opinions

Hackney, J.

The appellant, in two paragraphs of complaint, sued the appellee to enforce specific performance of a contract for the purchase, by the appellee from the appellant, of certain real estate. The circuit court sustained appellee’s demurrer to each paragraph of complaint, and that ruling is here urged as error.

From the facts pleaded in each paragraph, it appears that the appellee was contemplating the purchase of a suitable site for a city hall, and a committee of the common council had in view and under consideration several locations, including that of the appellant. On the 24th day of April, 1893, the committee divided in its choice of locations, submitted to the common council two reports, one expressing a preference for one location and the other expressing a preference for and the advantages of the location of the appellant’s property, at the price for which it was offered, and of still another property if the council should desire property cheaper than that of the appellant.

The latter report was adopted, and thereupon a member of the council asked the appellant, who was present ut the meeting, if he would not accept a stated sum for his property, being $1,000 less than the sum at which it had been offered, to which appellant answered in the affirmative. The following resolution was then adopted by the council:

“Resolved, That the mayor of the city be instructed to purchase the property known in the proceedings of this council as the Carskaddon property, for the sum of $20,-000, said purchase to be made subject to the incumbrance thereon, $4,000 to be paid in cash and the balance of $5,000 to b.ear interest at six per cent, to run for a time agreed upon by said mayor and Carskaddon.”

It was alleged generally that the proposition contained in the resolution was accepted by the appellant, and that it was the intention of the mover of said resolution, and of the council in adopting it, that such action should complete the purchase of said property, and that the mayor should act in receiving the deed and in executing the notes and mortgage. A tender of a deed to the mayor, and other steps by the appellant in compliance with the terms of the resolution, were alleged. In one paragraph reformation of the resolution was sought, by which the alleged intention of the appellee should be established, and thereupon to enforce specific performance.

Elaborate and able briefs have been filed by counsel for the parties, and numerous questions have been fully presented, but we are of the opinion that the judgment of the circuit court must be affirmed upon two propositions: 1. The resolution, upon its face, does not create an obligation on the part of the appellee, and, 2d, it can not be amended by parol.

Upon the first of thesé propositions it is perfectly plain that the resolution and the proceedings preceding it do no more than express the preference of the common council for the appellant’s property, and instruct the mayor to purchase it.

It is without doubt that, as a contract, the action taken included no obligation on the part of the appellant, and was wholly devoid of the elements of mutuality. The oral declaration of the appellant, in the meeting of the common council, that he would accept $20,-000 for his property was not enforceable under the statute of frauds. R. S. 1894, section 6629 (R. S. 1881, section 4904). Nor did his oral acceptance of the terms of the resolution create an enforceable obligation against him, first, for the reason that the resolution was not, upon its face, an obligation on the part of the city to make the purchase, and, second, because the oral acceptance was as much in violation of the requirement of said statute, that such contracts should be in writing, as was his oral offer of the property at the sum stated. The resolution but directs a purchase, upon terms stated, and by no possible construction can be held to constitute a purchase. Nor can it be said that the resolution together with the oral acceptance constitute a contract to purchase. It is short of a contract not only in that its terms create no obligation on the part of the appellee, but it is a familiar rule that where contracts are required to be in writing they must be wholly written. This rule is aptly illustrated in the case of the Board, etc., v. Shipley, 77 Ind. 553, where a general order was entered by a board of county commissioners, allowing a bounty, in a sum stated, to each volunteer mustered into the service of the United States under a given call of the President, and which order was accepted, on the part of Shipley, by his enlistment and mustering into the service in accordance with the terms of the order. In a suit for the bounty it was held that the contract having been but partly written, and depending in part upon parol evidence should be regarded as an oral, and not as a written contract, and that the six years, and not the twenty years limitation applied. This rule has been recognized and applied in many other cases in this State. Overshiner v. Jones, 66 Ind. 452; Pulse v. Miller, 81 Ind. 190; Weaver v. Shipley, 127 Ind. 526; Board, etc., v. Cincinnati, etc., Co., 128 Ind. 240; Gordon v. Gordon, 96 Ind. 134; Board, etc., v. Miller, 87 Ind. 257; High v. Board, etc., 92 Ind. 580.

In the Board, etc., v. Shipley, supra, are cited a number of cases holding that resolutions much stronger than the present, in the creation of an obligation on the part of the resolving party, can not be held to embody a contract. If the resolution did not constitute a contract, and if the resolution with an oral acceptance did not constitute a contract in writing, within the requirement of the statute of frauds, it remains only to inquire whether the resolution can be amended by parol to express the alleged intention of the appellee, that is to say, the intention to complete a purchase by said resolution.

It is not necessary, to our conclusion, that we should determine the effect of the resolution if it had fully expressed the alleged intention of the appellee, but it may well be suggested as doubtful if a complete purchase by ex parte resolution is possible. But that reformation of the resolution is not possible we have no doubt. As written it was not a contract, and it was desired, by the reformation, to give it the quality and force of a contract.

This would be no less than creating by parol a contract which the law requires shall be in writing. That this can not be done has often been decided by this court. Norris v. Blair, Admr., 39 Ind. 90; Baldwin v. Kerlin, 46 Ind. 426; Ridgway v. Ingram, 50 Ind. 145; Lee v. Hills, 66 Ind. 474; Pulse v. Miller, supra; Wilstach v. Heyd, 122 Ind. 574.

In Lee v. Hills, supra, it was said: “In the case at bar it is claimed by the appellants that the memorandum on which they rely * did not contain all that belonged essentially to the alleged contract between them and the appellees, in this, that it did not show that the appellees had sold the appellants the goods mentioned in said memorandum. It is further claimed that the omission of the fact of sale from the memorandum was the result of mistake; but it is immaterial how the omission occurred, as it is very clear that, under the law, parol evidence could not be received to supply the omitted fact in the memorandum.”

Filed Feb. 6, 1895.

There having been no contract, and being powerless to create one by parol, the ruling of the circuit court was right.

The judgment, therefore, is affirmed.

Howard, J., took no part in the decision of this case.