Kennedy v. Gramling

11 S.E. 1081, 33 S.C. 367, 1890 S.C. LEXIS 154

• Court: Supreme Court of South Carolina
• Decided: October 6, 1890
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Justice McIver.

This was an action to enforce the specific performance of a contract for the sale of real estate. The defendant set up two defences — first, that there was no contract valid under the statute of frauds ; second, that the title of the plaintiff was not a good and marketable title. The issues in the action were referred to master Miles, who made a full and elaborate report, clearly setting forth the facts and discussing the legal issues (which should be incorporated in the report of the case), finding that there was a valid contract, and that the title was good and marketable. To this report defendant excepted, and the case was heard by his honor, Judge Hudson, who, in a short order, overruled the exceptions, confirmed the report, and adjudged that the defendant do, within thirty days, comply with his contract. From this judgment defendant appeals upon the several grounds set out in the record, which need not be set out here, as they will sufficiently appear from the discussion of the questions raised thereby.

First, was there such a contract for the sale and purchase of the real estate in question as would be valid under the statute of frauds ? The claim on the part of the plaintiff is, that the contract is to be found in a letter from the defendant to the plaintiff and the reply thereto, of which the following are copies:

•‘Charleston, S. C., Jan. 7, 1888.

uMiss M. A. Kennedy, Summerville, S. 0.:

“After thinking over the matter in reference to purchasing the property at your figures, I have decided that I would not give more than $3,800 cash. Should you accept, please give me an early reply; also send deeds, papers, etc., for examination. If not, I am ready at any time to settle'for the year’s rent.

“Yours, very respectfully,

“GEO. H. GRAMLING.”

“Summerville, S. C., Jan’y 9, 1888.

ííMr. Geo. IT. Gramling, Charleston, S. 0.:

“Dear Sir: Your favor of 7th inst. came duly to hand and carefully noted. I would, like to have realized more than your offer of $8,800 for my house, as I really think it is worth more, but as you state you will not give more, I will accept your offer of three thousand eight hundred dollars, this is to be clear of expense of titles, etc. All taxes is paid, both State and city. There is one year’s insurance paid on the house, which I expect you to pay. I will send all the papers to you by Tuesday.

“Yours, very respectfully,

“M. A. KENNEDY,

“Per D. C. Ebaugh.”

Now, while it is not and cannot be denied that a valid contract for the sale of real estate may be made out by putting together a letter'of the defendant to the plaintiff and the plaintiff’s reply thereto, or -vice versa, provided all the essential terms of the contract can be gathered from the terms of such letters, the contention in this ease is, that all- the essential terms of the contract cannot be gathered from these letters. 1st. Because the property is not specified. 2nd. Because the price to be paid is not agreed upon definitely. It is true that no particular piece of property is in terms specified in either of the letters, and if there is nothing in the letters designating the particlar property for which the offer is made and accepted, that would be fatal to the validity of the contract. Church of Advent v. Farrow, 7 Rich. Eq., 378; Hyde v. Cooper, 13 Rich. Eq., 250; Humbert v. Brisbane, 25 S. C., 506. But while parol evidence is inadmissible to supply an omission in the writing of any reference to the particular property, yet such evidence is competent to show the situation and surrounding circumstances of the parties, and thereby identify the particular property referred to in writing. Thus where there is a proposition to sell and an agreement to buy the house in which plaintiff resides, there is no doubt that parol evidence would be admissible to show in what particular house he did reside, as there could not be a shadow of doubt that both of the parties — the one in making the offer and the other in accepting it — had reference to the same property; and that is the great point.

Hence it may be stated as a rule, that whenever the writing or writings relied upon show, in themselves, that both parties referred to the same property, then the requirements of the statute are fulfilled, and parol evidence may be resorted to for the purpose of designating what particular piece of property both parties had reference to; but where it does not appear from the writings themselves what property was referred to by the parties, then parol evidence is not competent to show that fact. In other words, the writings relied upon must, in and of themselves, furnish the evidence that the minds of the parties met as to the particular property which the one proposed to sell and the other agreed to buy; and when such evidence is not found in the writings, it cannot be supplied by parol; but when it is found there, then parol evidence of extrinsic circumstances may be resorted to for the purpose of specifically designating' the property to which both parties are shown to have referred by the terms of the writings. This doctrine is fully established by the authorities cited in the master’s report, w'hich need not be repeated here.

Apply this rule to the present case. While it is true that no specific property is described in the letters which passed between the parties, yet we do not think there can he any doubt that the terms of the letters show that both parties referred to the same property — the property which the defendant had rented from the plaintiff. When the defendant wrote to the plaintiff proposing to ¡five a certain price for a piece of property, and concluding by saying that if his offer to buy was not accepted, he was ready to settle for the year’s rent, could there have been a doubt in the mind of the plaintiff that the defendant proposed to buy the property which he then occupied under a lease from the plaintiff? It seems to us that the terms used in defendant’s letter to plaintiff admit of no other construction than that he proposed to buy at a stated price thd property which he had rented from the plaintiff ; but if his offer should not be accepted, he was ready to settle for the year’s rent. Rent of what? Why, necessarily of the property which he had proposed to buy. The plaintiff could not have failed to understand from the terms of the defendant’s letter that he wished to buy the property which he was then renting from her, and offered a specific sum of money therefor; but if his offer should not be accepted, he was ready at any time to settle for the year’s rent of the property. When, therefore, the plaintiff replied to that letter, accepting the offer (if, indeed, she did accept), there can be no doubt that the minds of the parties met as to the particular property referred to, and hence we think it clear that defendant’s first objection to the validity of the contract cannot be sustained.

The second objection raises a question of more difficulty. It cannot be doubted that the price to be paid is one of the essential terms of a valid contract for the sale of real estate, and the practical inquiry here is whether the letters relied upon contain in themselves evidence that the minds of the parties ever met as to the price of the property in question. The defendant’s letter undoubtedly does contain an offer of a specific sum of money — $3,800 cash- — -and the defendant distinctly declares, “I would not give more.” The plaintiff replied, saying, “I will accept your offer of three thousand eight hundred dollars, this is to be clear of expense of titles, etc.” Can this be regarded as an unqualified acceptance of defendant’s offer, or is it not rather to be regarded as a conditional acceptance ? Is it not the same thing as if plaintiff' had said, “I will accept your offer of $3,800, provided you will pay the expense of titles,"etc.” ? It seems so to us. If so, then it cannot be said that the letters contain in themselves the evidence that the minds of the parties ever met as to the very material matter of the price to be paid, for defendant’s letter not only contained an offer of a specific sum of money, but was accompanied by a declaration that he would not give more, while plaintiff’s letter does not furnish the evidence of an unqualified acceptance of defendant’s offer, but, on the contrary, shows that she accepted upon condition that defendant will pay more. In other words, defendant’s letter contains an offer of $3,800 and nothing more, while plaintiff’s reply shows that she was willing to accept the defendant’s offer, provided he would pay more, viz., the “expense of titles, etc.” We do not see, therefore, how it can be said that the letters show that the minds of the parties ever met as to the material matter of price. It is true that the difference between the amount offered and the amount agreed to be accepted is small, but that cannot affect the question. The fact that there was a difference is quite sufficient to show that the minds of the parties never met. The maxim, de minimis non curat lex, has no application to money demands. Nix v. Bradley, 6 Rich. Eq., 43.

It is stated in the argument of one of the counsel for plaintiff, that “the well established rule in Charleston is that the purchaser pays for papers,” but we find no evidence in the “Case” of any such rule or custom, and in the absence of any such evidence, we must consider the case under the rule of law. That rule, as we understand it, is that in the absence of any agreement to the contrary, shown either by direct evidence or inferred from the custom shown to prevail in any particular place, the vendor must pay for the expense incurred in making titles. When a person makes a contract to sell a piece of real property, it is necessarily implied that he must make a conveyance thereof, and consequently he must bear the expense of making such conveyance. Hence it has become a very general if not universal custom, when property is to be sold under the order or process of the court, to provide in the order and advertisement that the purchaser is to pay for papers.

It only remains to consider, on this branch of the case, an authority much relied on to sustain a contrary view to that which we have adopted, and that is the case of Neufville v. Stuart, 1 Hill Cli., 159. In that case, as in this, the effort was to establish the contract by letters which bad passed between the parties. The defendant’s letter, dated 1st March, 1831, contained a specific offer of $6,000 cash and $2,000 in January, 1832, for the plantation on which Mr. Neufville resided, containing 869 acres, to which plaintiff, through her attorney, replied, saying, “I have to acknowledge your letter of the 1st of March, which came to hand bv this day’s mail, offering 8,000 dollars for the tract of land, being the settled plantation on which Mrs. Neufville resided, containing 869 acres, viz., $6,000 cash and $2,000 in January, 1832. I accept the offer and will deliver possession as soon as you please. The deed will be signed by Mrs. Neufville as soon as a conveyance can be forwarded to her. I will be ready to receive the 6,000 dollars when possession is taken, and your bond and mortgage for the 2,000 dollars (with interest, I presume, from the date) may be delivered when Mrs. Nedfville’s deed is delivered to-you. * * * I have written to the overseer to prepare for giving you possession.”

The question in the case was, whether the letter of the plaintiff contained an unqualified acceptance of the offer contained in defendant’s letter, or whether the words .in parenthesis — “with interest, I presume, from the date” — contained in plaintiff's letter imported a conditional acceptance only. It was very properly held that there was an unqualified acceptance of the offer made by defendant, and that the words in parenthesis in a subsequent part of the letter, in reference to the mode of drawing the bond to be given for the credit portion of the price which had been agreed upon, were not used for the purpose of importing any additional term into the contract, but simply as indicating the construction which plaintiff thought ought to be placed upon one of the terms of the contract as made by a previous part of the letter.

It is very obvious that there is a marked difference between that case and this. There the plaintiff, after reciting the terms of defendant’s offer, says explicitly: “I accept the offer and will deliver possession as soon as you please.” This undoubtedly was an unqualified acceptance of the offer as made by the defendant, and was manifestly intended so to be ; and the fact that plaintiff in a subsequent part of the letter used the expression found in parenthesis, in reference to the interest, was clearly intended not to import any additional term into the contract which had already been closed, but was simply intended to indicate the construction which plaintiff thought ought to be placed upon a contract already made. Here, however, there was no unqualified acceptance of defendant’s offer of $3,800, but the acceptance was upon condition that the defendant should pay more than that sum, to wit, the expense of titles, &c. It is very obvious, from the discussion of the question in Neufville v. Stuart, that if the plaintiff there had, as here, accompanied the acceptance of the offer of defendant with a condition that the $2,000 was to bear interest f”om date, the conclusion would have been different. If, for example, the plaintiff in that case, in stating the terms of defendant’s offer, had added to the words, “f>2,000 in January, 1832,” the words, “with interest, I presume, from the date,” or had added to the words, “I accept the offer” the words, “the credit portion to bear interest from the date,” there can be no doubt, that the court would have held, the alleged contract invalid under the statute of frauds; for in such a case the defendant would be found making an offer to buy on certain terms, while the defendant would be found accepting the offer with an additional term incorporated into it. It is clear, therefore, that the case of Neufville v. Stuart is so entirely different from this as to furnish no authority in the present case.

It seems to us, therefore, that there is no valid contract under the statute of frauds established in this case, and that upon this ground the judgment below must be reversed.

This would obviate the necessity of considering the question as to the validity of plaintiff’s title, but as that question has been made and fully argued, we will proceed to determine it. In view of the very satisfactory manner in which the question of title has been discussed by the master in his report, we do not deem it necessary to go over the same ground, but are content to adopt his conclusion^ concurred in, as it is, by the Circuit Judge.

The only remaining question¹ — as to the form of the judgment — is not, under the view which we have taken, a practical question, but we may say that it appears to be in the usual form and not objectionable. The question, in reference to this 'matter, raised by appellant, would more properly arise when it is sought to enforce such a judgment by attachment.

The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the complaint be dismissed, upon the ground that the contract of which specific performance is sought to be enforced is not a valid contract under the statute of frauds.