Grace v. Denison

114 Mass. 16

Opinion

Wells, J.

The memorandum of agreement indicates that a part of the purchase money was agreed to be secured by mortgage of the premises to be conveyed. But it does not disclose nor furnish any means for the court to ascertain what part or amount is to remain upon mortgage, and what paid in cash upon delivery of the deed. The statute of frauds does not permit such % contract to be enforced without a memorandum of it in writing, signed by the party to be charged. The court cannot therefore go outside of this writing to ascertain what the real agreement of the parties was in this particular. The writing being incomplete in one of its essential terms, and the court having no means to which it can lawfully resort to supply the defect, specific performance must fail. Fry on Specific Performance, §§ 221, 222 & note 7. Browne on St. Frauds, §§ 376, 381. Boston & Maine Railroad v. Babcock, 3 Cush. 228, 232.

Demurrer sustained.