McConnell v. Brillhart

17 Ill. 354

• Court: Illinois Supreme Court
• Decided: June 15, 1856
• Status: Published

Opinion

Scates, 0. J.

The leading principle that governs the case is one requiring contracts, or notes of memorandums of the contract to be in writing, and signed by the party to be charged therewith, or by some one by him thereunto lawfully authorized, under our statute of frauds and perjuries, which is a copy of the English statute.

Cases have been excepted out of the statute, where parol contracts have been in part performed by payments, possession and improvements, but I do not propose to examine or discuss this class.

Of cases within the statute, courts have been called upon to discuss every clause of it, and apply it to every variety of circumstances and facts; in ascertaining what sort of writing is sufficient, what it shall express and show upon its face, as to parties, description of the property, terms, conditions and price, who shall sign it—principal and agent—what will constitute an agency, what is a sufficient signing, &c., &c.

And 1st. There is no form of language necessary; anything from which the intention may be gathered, as in other contracts, will be sufficient.

2. Any kind of a writing, from a solemn deed, down to mere hasty notes or memoranda in books, papers or letters, will suffice. Doty v. Wilder, 15 Ill. R. 407; Johnson v. Dodge, 17 Ill. R., post; Buckmaster v. Harrop, 7 Ves. Jr. R. 341, note 3; Clerk v. Wright, 1 Atk. R. 12; 1 Humph. R. 326; 10 Ohio R. 402; 2 Bibb R. 98; 4 Bibb R. 466; 15 Vermt. R. 685; 1 John. Ch. R. 273; 13 Wend. R. 53; 1 Paige Ch. R. 434; 6 Wend. R. 103; 15 Pick. R. 159; 10 Conn. R. 192.

. 3. The writings, notes or memoranda shall contain on their face, or by reference to others that is traceable, the names of the parties, vendor and vendee, a sufficiently clear and explicit description of the thing, interest or property, as will be capable of identification, and separation from other of like kind, together with the terms, conditions and price to be paid, or other consideration to be given. Barry v. Coombe, 1 Pet. R. 647, 650; Doty v. Wilder, 15 Ill. R. 407; Blagden v. Bradbear, 12 Ves. Jr. R. 466; 1 Atk. R. 12; Clinan v. Cooke, 1 Sch. and Leff. R. 31; Champion et al. v. Plummer, 4 Bos. and Pull. R. 252; Dock v. Hart, 7 Watts and Serg. R. 172; Pipkin v. James, 1 Humph. R. 326; Anderson v. Harold, 10 Ohio R. 399; 5 N. Hamp. R. 540; 1 N. Hamp. R. 158; Allen v. Roberts, 2 Bibb R. 98; 4 Bibb R. 466; 3 A. K. Marsh. R. 443; 6 B. Monroe R. 100; 6 Gill Md. R. 66; 9 Gill Md. R. 205; 15 Vermt. R. 685; 1 John. Ch. R. 273; 13 John. R. 296; 5 Cow. R. 162; 1 Paige Ch. R. 434; 6 Wend. R. 103; 15 Pick. R. 159; 16 Maine R. 458; 10 Conn. R. 192; 4 Watts and Serg. R. 221;

4. The party to be charged, or vendor of land, &c., or his lawfully authorized agent, shall sign it.

5. A verbal or parol agency is sufficient for this purpose. Doty v. Wilder, 15 Ill. R. 407; Johnson v. Dodge, 17 Ill. R., post; Clinan v. Cooke, 1 Sch. and Leff. R. 31.

6. The signing will be sufficient in the caption, or body of the memorandum, or by a subscription to it. 10 Ohio R. 402; 1 Pet. R. 647, 650.

7. The contract or obligation must be signed with intent to enter into it, must be mutual, reciprocal and upon good or valid consideration. Dorsey v. Packwood, 12 How. U. S. R. 134; Anderson v. Harold, 10 Ohio R. 402; 1 Paige Ch. R. 434; 6 Wend. R. 103; 21 Wend. R. 139; 1 Barb. Ch. R. 499; Getman et al. v. Getman, 4 Paige Ch. R. 305; 16 Maine R. 458; 4 Watts and Serg. R. 221.

Contracts within the statute of frauds, are no more subject to change or alteration, or proof of their contents, &c., than other written contracts. Yet mistakes may be corrected. 11 Ohio R. 109. And the same degree of certainty, required in other written contracts, will be sufficient in contracts under the statute of frauds; id certmn esi, quod cerium reddi potest, is a maxim equally applicable to both.

So a return on an attachment of a levy on “ all the right, title, and interest in and to a certain piece or parcel of land, with the buildings thereon, situate in Columbia street, at the southerly part of Boston, and on one piece of land and the buildings thereon standing, being situate in Pleasant street in said Boston, which the within named Benjamin Huntington has to the estates before mentioned,” was held sufficiently certain, and parol evi dence might identify it, by showing Huntington had but one piece on either street. Whitaker v. Sumner, 9 Pick. R. 311.

The same exceptions to the general rule of the inadmissibility of parol to explain written contracts, will apply here. The intention is to govern, and latent ambiguities may be explained, if any exist. The court may, therefore, inquire into the circumstances surrounding the parties, to gather every material fact relating to the person, who claims to be interested, and to the property which is claimed as the subject of disposition, for the purpose of identifying the person or thing intended, or the quantity of interest, where a knowledge of extrinsic facts, can 'in any way be made ancillary to the right interpretation of the words used. 1 Greenl. Ev., Secs. 287, 288, note 3, p. 364. As a description, “ one half of the farm on which he, said Moses, then dwelt,” parol admitted to show the land he lived on. Doolittle v. Blakesley, 4 Day R. 265; Venable v. McDonald, 4 Dana R. 336.

Testing the contract presented in these letters, by the principles laid down, and we find nothing wanting to show a valid contract within the statute of frauds.

Dr. Michener swears he wrote to plaintiff, as agent for defendant, to know whether he would dispose of (or they, as is insisted,) some land lying contiguous to his, and on what terms. The answer was a general offer to sell—“ if any person sees fit to give one thousand dollars for the half section, and informs us accordingly, one of us, will go out immediately, with full power to convey the same to the purchaser. Terms, cash in hand. Should this seem too steep for the buyer, we will hold on; and if too low on our part, we will abide the consequences. And this proposition will hold good until the first of July.”

In his letter of July 2nd, plaintiff acknowledges the receipt, on the day previous, of defendant’s acceptance of his offer and terms, by letter. Their subsequent letters fully show the same, and that the 1st of August was fixed upon for the day of payment and conveyance.

Two objections are urged against these letters, for want of certainty in the vendors,- and in the description of the land.

These objections are more specious than solid. There is no uncertainty as to the other vendor, if there were two, as plaintiff expressly refers to his father as the other, when he remarks, “ perhaps you are aware, my father has not received his patent for his part, but no doubt it is at Dixon by this time.” But as his father never signed the letters, he did not become a party to the contract. The plaintiff stands alone, as vendor of both tracts; and accordingly brought a conveyancé with him, from his father, to enable him to perform Ms agreement. He did sign, and is bound, and may not plead the statute for another, to avoid Ms own valid agreement. Having title to half only, defendant might, at his own election, rescind, or treat it as void, and a fraud on him, in selling him land, to which plaintiff had no title. But he may, at his election, compel a conveyance of that part to which plaintiff has title and resort to him for damages for the remainder. McConnell's heirs v. Dunlap's devisees, Hardin R. 41.

Lastly, the description of the land as a half section contiguous to Dr. Michener’s, is susceptible of identification by parol, by showing that the half section, described in the bill, had been entered by McConnells, father and son; that it lay adjoining the only land owned by witness, or was the only lands owned by them adjoining any land of witness, as was shown in the cases in 4 Day R. 265 and 4 Dana R. 336. This has been done, and we think the bill fully sustained by the proof.

Decree affirned.