Matthews v. LaPrade

107 S.E. 795, 130 Va. 408, 1921 Va. LEXIS 162

• Court: Supreme Court of Virginia
• Decided: June 16, 1921
• Status: Published

Opinions

Burks, J.,

delivered the opinion of the court.

[1] This is a proceeding by notice of a motion to recover damages for the breach of an option contract for the sale of real estate. The defendant demurred to the notice and the trial court sustained the demurrer. Thereupon the plaintiff asked leave to amend his notice in certain particulars, but the trial court refused to allow the amendment and the plaintiff excepted.

The errors assigned are (1) the judgment of the trial court sustaining the demurrer, and (2). its refusal to permit the amendment. The plaintiff filed no bill or certificate of exception to the ruling of the trial court refusing to permit the amendment, but embodied the amendment and the ruling of the trial court'thereon and his exception thereto in the order of the court. This was an irregular mode of procedure, not to be commended, but if it be conceded that it was sufficient for the purpose, the amendment did not cure all the defects of the original notice.

The original notice was signed by the plaintiff and, so far a,s it need be recited, was as follows:

“To J. C. LaPrade:

“The sum of nine thousand four hundred and fifteen dollars ($9,415.00) is due me, the undersigned, by you, with interest thereon from the 17th day of December, 1919, until paid, the same being for compensation in damages for the breach by you, without legal justification, of the following contract made and signed by you, to-wit:

“ ‘Dec. 1, 1919.

“ ‘Received of W. J. Matthews $10.00 for option on one tract of land in Prince Edward county for 20 days from date, same containing 466 acres more or less.

“ ‘Payments as follows: •

“ ‘1/3 cash, balance 1-2 & 3 & 4 years; purchase price to be $6,000.00.

“ ‘(Sgd.) J. C. LA PRADE;

“ ‘Witness:

“ ‘H. A. LESTER.5

“Which said damages are evidenced by the following account hereby incorporated into this notice as an integral part thereof, to-wit: ,

“To difference in price at which you agreed to sell me said property and the market price, $9,415.00.55

To this notice the defendant demurred and assigned the following grounds of demurrer:

“(1) No facts are stated which would charge the defendant with a breach of contract. The charge that there was a breach of contract is a mere conclusion of law.

“(2) The notice of motion does not aver that the plaintiff performed the alleged contract as he must do in order to bind the defendant to any such alleged contract.

“(3) The alleged contract sued on is void because it is unilateral. It attempts to bind defendant, but not plaintiff, and said alleged contract is not such a unilateral contract as in law will bind defendant.

“(4) The alleged contract is void under the Statute of Frauds in that no such contract as is valid under the Statute of Frauds for the sale of real estate is alleged in said notice of motion.

“(5) The said notice of motion alleges a claim for damages which is unlawful and neither of which alleged damages, nor any part thereof, is recoverable upon said alleged contract.”

[2] The original notice nowhere alleges that the plaintiff ever exercised the option given him, nor does it allege any facts which would in any way aid the description of the land given in the receipt copied into the notice, nor any facts which would bring the plaintiff’s claim to damages within the exception to what he states is the general rule prevailing in this State in such cases. The demurrer was, therefore, properly sustained.

[3] It is a, mistake to suppose that because a plaintiff elects to proceed by motion he is relieved from the necessity of stating such facts as will entitle him to recover of the defendant, if the facts alleged be proved. The plaintiff must always state a good cause of action against the defendant, regardless of the form of procedure adopted. The facts alleged must be sufficient in substance to warrant a recovery. If they are sufficient in substance, but deficient in detail, the defendant should call for a bill of particulars. We recently said on this subject:

“In a proceeding of this kind the notice takes the place of the writ and the declaration, and while the notice is viewed with great indulgence, it must set out matter sufficient to maintain the action, and whether or not it does so is tested by a demurrer to the notice. What is lacking in allegation cannot be supplied by evidence. There must be both allegation and proof to entitle a plaintiff to a judgment, and the allegation must precede the proof. * * * If this were the only error committed on the trial, we would hardly reverse the judgment of the trial court, but we do not recede from the proposition that, no matter what form of procedure is adopted, every litigant has the right to be informed in plain and unmistakable language of the ground of complaint or defense of his adversary. The procedure by notice under section 6046 of the Code is looked upon with great indulgence not because the notice is supposed to be the act of a' layman ignorant of forms of procedure, for that would be contrary to almost universal experience, but because the courts are loath to sacrifice substance to form, and desire, so far as possible, to avoid that result. The adoption of this method of procedure, however, cannot dispense with the allegation of the substance of a good ground of action or defense. Anything less than this would endanger the substantial rights of litigants.” Mankin v. Aldridge, 127 Va. 761, 105 S. E. 459.

The plaintiff, however, tendered an amendment of his notice which showed an acceptance of the option, but only vaguely tended to aid the description of the land and indirectly charged fraud-on the part of the defendant in refusing to comply with his contract. This amendment was refused by the trial court, but upon what ground does not appear from the record. It appears, however, from the argument of counsel for the defendant in error in this court that they deny liability of the defendant in error upon the ground (1) that the receipt filed with the notice is not a sufficient memorandum under the statute of frauds because the land is not adequately described therein, and the description given cannot be aided by parol evidence; and (2) that under the general rule prevailing in this State in cases of this kind the measure of the plaintiff’s damages is the contract price of the land and not the difference between the contract price and the market value at the time of the breach, and that the plaintiff’s notice, as amended, contains no allegations of fact which take his case out of the general rule.

[4-6] It is too well settled in this State to require the citation of authority that fraud must be distinctly charged and clearly proved, and it seems equally clear that if parol evidence is necessary in connection with the writing to identify the land sold so as to show a compliance with the statute of frauds, the facts to be established by such parol evidence should be alleged in the pleading. In an action at law upon a contract required by the statute of frauds to be in writing it is not necessary for the plaintiff to allege a writing. Eaves v. Vial, 98 Va. 134, 34 S. E. 978. But if he vouches the writing in his pleading, as the plaintiff did in this case, then the writing must of itself be sufficient, or else there must be such allegation of facts to be established aliunde as together with the writing will make it sufficient. The amendment proposed did not state the facts necessary to be proved to aid the description of the land given in the written memorandum, and the allegation of fraud relied upon to take the plaintiff’s case out of the general rule admitted as prevailing in this State was made only inferentially. The defendant, however, goes further and denies that the written -description of the land can be aided by parol evidence, or that the plaintiff could recover even if he had been permitted to prove that the defendant was the complete equitable owner of the land and denied such ownership as a mere pretext to avoid performance of his contract.

[7] We cannot accede to the proposition of the defendant in error that parol evidence cannot be received in aid of a memorandum under the statute of frauds to identify the land upon which the option was given.

It may be conceded that a majority of the States which have passed upon the question hold that a contract which describes the land merely by its acreage and general location is not sufficient to satisfy the statute of frauds, and that the case at bar comes within that category. But it is also -generally held that if the description is by ownership, acreage and general location, it is sufficient, provided it is shown by parol that the vendor owns but one tract which answers the description. We have been at pains to read and consider a large number of these cases, but it would serve no useful purpose to cite them. We have stated in general terms the result of the conclusions reached. A good collection of cases will be found in L. R. A. 1916C, 1128-30.

In view of the conflict of authority elsewhere, we feel at liberty to adopt our own course. The chief question is whether parol evidence is admissible to identify the land by proof of ownership, although ownership is not expressly stated in the written memorandum. Where the contract calls for “one tract of land in Prince Edward county * * containing 466 acres, more or less” is it permissible, in aid of the writing, to show by parol that the vendor owned only one tract of land of that description? We think it is.

In Plant v. Bourne (1897), 2 Ch. Div. 281, 66 L. J. Ch. (N. S.) 643, the description given was “twenty-four acres of land, freehold, and all appurtenances thereto at Totmonslow, in the parish of Draycott, in the county of Stafford, and all the mines and minerals thereto appertaining. Possession to be had on the 25th of March next. The vendor guaranteeing possession accordingly.”

The objection to this agreement was that it did not specify in terms what twenty-four acres of freehold land at Totmonslow the agreement referred to, and that the property to be identified must be more accurately .ascertained in language than was done by the memorandum.

In stating the case, it was said: “At the hearing the plaintiff proposed to adduce evidence to prove that he was the owner of certain freehold land situate at Totmonslow, in the parish of Draycott, in the county of Stafford, on the south side of the highway from Totmonslow to Tean, and containing 24A. 1 R. 26 P. more or less; that at the date of the contract the defendant was well acquainted with the said land, and desirous of purchasing it, and that on the morning of February 12, 1896, the defendant, by appointment, went over and carefully examined the said land with the plaintiff,- and that the contract was signed on the evening of that same day.”

Lindley, L. J., after referring to the cases of Ogilvie v. Foljambe, 3 Mer. 53, and Shardlow v. Cotterell, 20 Ch. D. 90, in which similar memoranda had been held sufficient, said: “Now it seems to me that we should be simply splitting hairs, and introducing a distinction without a difference, if we adopted the view which Mr. Astbury has pressed upon us, that there is a substantial distinction between this and the two cases to which I have referred. Of course, I see that there are differences; but the question is what they are worth. Now is this, or is it not, when looked at, a sufficient description to let in this parol evidence to show what the agreement referred to. That there was an agreement is plain enough. What is it that the agreement refers to? The answer to that is, it was the twenty-four acres of freehold land which they were talking about. Evidence to show that is admissible; and if that is once admitted, there is an end of the case.”

Chitty, L. J., in the same case, also said: “Now there is no mystery about the statute of frauds. All that it requires is a memorandum in writing of the contract where the subject matter is such as we are dealing with. That memorandum must be construed in a reasonable way, as well as any other memorandum which is in writing to which the statute of frauds does not apply. Now what have we here? We have the vendor, Plant, and the purchaser, Bourne, sufficiently named and described, and we have Plant agreeing to sell,- at the price which is mentioned, ‘twenty-four acres of land, freehold, and all appurtenances thereto, at Totmonslow, in the parish of Draycott, in' the county of Stafford,’ and so.on; and then possession is to'be given, and the vendor guarantees possession to be given accordingly on the day mentioned. I should say. reading that according to the ordinary and fair rules of construction, there is no ambiguity about it at all as it stands. I am unable to understand the argument that Plant was not selling his own twenty-four acres of land, because I think on the .face of the document, that is the meaning of it; and if that is the meaning of it, it at once comes within the range of cases to which I have referred. I'think Mr. Plant means he is selling ‘the twenty-four acres we have been looking at,’ or ‘my twenty-four acres.’ ”