Walker, Associate Justice.
This is an appeal from a. judgment for the purchase money of certain lands, and foreclosing the vendor’s lien upon them.
The main questions raised are (1), was the contract for the sale of the lands shown, and (2), whether the facts justified the enforcement of the contract of specific performance, or did Watson, the vendee, establish his defense of fraud or mutual mistake affecting any material part of the contract, if a contract existed.
The letter of November-, 1884, from Baker to Watson describes the land as “situated six miles northwest from Mount Vernon, Texas, * * * consisting of two thousand five hundred acres of land,” and further “ * * my farm is situated on the south side of White Oak creek, one mile from the bottom.” The telegrams in evidence between the parties show the price agreed upon.
In the eighth assignment of error, complaint is that the court refused to withdraw from the jury the letters and telegrams which had all been read in evidence without objection. The reason urged for withdrawing them is that they do not show a contract in writing sufficient to take it out of the statute of frauds.
It is well established, that “the written evidence required by the statute need not be comprised in a single document or drawn up in any particular form. It is sufficient if the contract can be plainly made out in all its terms from any writings of the party or from his correspondence.” (19 Texas, 74, Peters v. Philips.)
[747]*747The memorandum or agreement required by the statute “need not be signed by both parties, but only by him who is to be charged by it.” (49 Texas, 695, Crutchfield v. Donathon.)
In Fulton v. Robinson, 55 Texas, 404, the general rule as to the requisites of the agreement or memorandum in writing, under the statute of frauds, is stated that it should be so reasonably definite and certain within itself or other writing referred to as to parties, consideration and subject matter that specific performance can be enforced without a resort to parol testimony.” In that case a receipt “in part payment of a certain tract of land, being my headright lying on Rusk creek in the Cross Timbers,” was held sufficiently definite.
In 19 Texas, 74, is cited from 1 McCord, 425 (not accessible to us), “A receipt stating that the vendor had received of the vendee a certain sum, being on account of a plantation on the Cypress, sold to him this day for two thousand two hundred dollars, * * was held sufficient compliance with the statute.”
In Colerick v. Hooper, 3 Indiana, 318, specific performance-was decreed upon the following agreement:
“I have this day sold my lot to Alexis Coquilard, on the plat in the town of South Bend, on the plat of said town, on the-river bank.
(Signed) “D. H. Colerick.”
“Aug. 11, 1835.”
In discussion the court argues “this memorandum * !$5 describes the property sold, not with the utmost certainty, it is true, but so that it could be identified, and parol evidence for that purpose would be admissible. Such evidence would not be required to make out the terms of the agreement, but to apply it to the subject matter of it.
“The thing sold was Colerick’s lot on the river bank in the town of South Bend. The written contract assumed that he had one lot on the river bank in said town, and implied that he had but one. Which was it was the only question to be settled. This can be easily answered from the data given.”
Of examples of descriptions, so imperfect that identity is impossible, we have in Johnson v. Granger, 51 Texas, 42, “Received of Cone Johnson three hundred dollars on town lots.” In 46 Indiana, 433: “Six hundred and forty acres of [748]*748land in Anderson county, Kansas.” In 52 Indiana, 127: “One hundred and twenty acres of land in Shannon county, Missouri.”
These cases may illustrate the rule applied to the memorandum in writing under the statute as to certainty required as to the land sold. It is clearly stated in Brown on Statute of Frauds, sec. 385: “It must appear from the memorandum what is the subject matter of the defendant’s engagement. Land, for instance, which is purported to be bargained for must be so described that it may be identified.” And in sec. 90, Pomeroy’s Com. on Specific Performance: “The subject matter must be described with sufficient exactness to render its identity certain upon the introduction of extrinsic evidence simply disclosing the condition of the parties at and immediately before the making of the contract.” (See also Lewis v. Reichey, 27 N. J. Eq. Rep., 240; Glenn v. Rogers, 3 Md., 316; Waring v. Ayers, 40 N. Y., 357; Pom. Com., sec. 90 and note.)
As in all other contracts in writing, parol testimony can not add to their terms, yet it can show the circumstances. It can not make the contract for sale of land, but can apply a description to the property, if such application can be made so that it be known that the particular object is found. Parol evidence can not add to an imperfect contract a material part in order to sustain it, but it can apply a description in it to the subject.
Applying these suggestions to the letters and telegrams in evidence, there can be no doubt as to the fact that Baker’s farm on which he resided, with the external description as to buildings and to farm and pasture lands enclosed, and its locality with reference to Mt. Vernon and the creek named,, was the property for which Watson made the offer and which was accepted at a price agreed upon.
Whether within the description is included the detached six hundred and twenty-nine acres—the Trevenio survey—is more difficult. The lands described in Baker’s letter are said to lie in a body. That the lands pointed out to Watson by Baker were in contemplation of the parties, and which was supposed to have been included in Trevenio survey, is equally clear to have been in Baker’s mind and also in Watson’s when he made his offer, which was finally accepted. But this does not appear in the writings relied upon as the contract. Nor will the difficulty be removed by resorting to a parol executed contract, for [749]*749while such may be inferred from the testimony, yet as to the Trevenio tract there was no possession given by Baker and taken by Watson, either actual or constructive. Watson’s possession was of the farm, and without occupation in any way of the Trevenio tract.
Watson’s letter of December 19, 1884, addressed to Baker, speaking of "your property,” referring doubtless to what he had been shown as Baker’s lands, etc., offering ten thous- and dollars, may have been intended as applying to the lands he had inspected, and if so, with knowledge of the general locality of the detached part, only that his information was that the tracts cornered together. But we can not reach this conclusion from the words "your property;” and we can not from them impart the two tracts into the written memorandum. We conclude that there was a sufficient memorandum to apply to the main farm tract, but not to the other detached from it.
Watson’s subsequent conduct places him at a disadvantage. It is in evidence that as early as February 7, 1885, he knew that the Trevenio survey was part of his contract. It is included in the unsigned notes for the purchase money prepared at his instance after he had resided on the land a month.
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Walker, Associate Justice.
This is an appeal from a. judgment for the purchase money of certain lands, and foreclosing the vendor’s lien upon them.
The main questions raised are (1), was the contract for the sale of the lands shown, and (2), whether the facts justified the enforcement of the contract of specific performance, or did Watson, the vendee, establish his defense of fraud or mutual mistake affecting any material part of the contract, if a contract existed.
The letter of November-, 1884, from Baker to Watson describes the land as “situated six miles northwest from Mount Vernon, Texas, * * * consisting of two thousand five hundred acres of land,” and further “ * * my farm is situated on the south side of White Oak creek, one mile from the bottom.” The telegrams in evidence between the parties show the price agreed upon.
In the eighth assignment of error, complaint is that the court refused to withdraw from the jury the letters and telegrams which had all been read in evidence without objection. The reason urged for withdrawing them is that they do not show a contract in writing sufficient to take it out of the statute of frauds.
It is well established, that “the written evidence required by the statute need not be comprised in a single document or drawn up in any particular form. It is sufficient if the contract can be plainly made out in all its terms from any writings of the party or from his correspondence.” (19 Texas, 74, Peters v. Philips.)
[747]*747The memorandum or agreement required by the statute “need not be signed by both parties, but only by him who is to be charged by it.” (49 Texas, 695, Crutchfield v. Donathon.)
In Fulton v. Robinson, 55 Texas, 404, the general rule as to the requisites of the agreement or memorandum in writing, under the statute of frauds, is stated that it should be so reasonably definite and certain within itself or other writing referred to as to parties, consideration and subject matter that specific performance can be enforced without a resort to parol testimony.” In that case a receipt “in part payment of a certain tract of land, being my headright lying on Rusk creek in the Cross Timbers,” was held sufficiently definite.
In 19 Texas, 74, is cited from 1 McCord, 425 (not accessible to us), “A receipt stating that the vendor had received of the vendee a certain sum, being on account of a plantation on the Cypress, sold to him this day for two thousand two hundred dollars, * * was held sufficient compliance with the statute.”
In Colerick v. Hooper, 3 Indiana, 318, specific performance-was decreed upon the following agreement:
“I have this day sold my lot to Alexis Coquilard, on the plat in the town of South Bend, on the plat of said town, on the-river bank.
(Signed) “D. H. Colerick.”
“Aug. 11, 1835.”
In discussion the court argues “this memorandum * !$5 describes the property sold, not with the utmost certainty, it is true, but so that it could be identified, and parol evidence for that purpose would be admissible. Such evidence would not be required to make out the terms of the agreement, but to apply it to the subject matter of it.
“The thing sold was Colerick’s lot on the river bank in the town of South Bend. The written contract assumed that he had one lot on the river bank in said town, and implied that he had but one. Which was it was the only question to be settled. This can be easily answered from the data given.”
Of examples of descriptions, so imperfect that identity is impossible, we have in Johnson v. Granger, 51 Texas, 42, “Received of Cone Johnson three hundred dollars on town lots.” In 46 Indiana, 433: “Six hundred and forty acres of [748]*748land in Anderson county, Kansas.” In 52 Indiana, 127: “One hundred and twenty acres of land in Shannon county, Missouri.”
These cases may illustrate the rule applied to the memorandum in writing under the statute as to certainty required as to the land sold. It is clearly stated in Brown on Statute of Frauds, sec. 385: “It must appear from the memorandum what is the subject matter of the defendant’s engagement. Land, for instance, which is purported to be bargained for must be so described that it may be identified.” And in sec. 90, Pomeroy’s Com. on Specific Performance: “The subject matter must be described with sufficient exactness to render its identity certain upon the introduction of extrinsic evidence simply disclosing the condition of the parties at and immediately before the making of the contract.” (See also Lewis v. Reichey, 27 N. J. Eq. Rep., 240; Glenn v. Rogers, 3 Md., 316; Waring v. Ayers, 40 N. Y., 357; Pom. Com., sec. 90 and note.)
As in all other contracts in writing, parol testimony can not add to their terms, yet it can show the circumstances. It can not make the contract for sale of land, but can apply a description to the property, if such application can be made so that it be known that the particular object is found. Parol evidence can not add to an imperfect contract a material part in order to sustain it, but it can apply a description in it to the subject.
Applying these suggestions to the letters and telegrams in evidence, there can be no doubt as to the fact that Baker’s farm on which he resided, with the external description as to buildings and to farm and pasture lands enclosed, and its locality with reference to Mt. Vernon and the creek named,, was the property for which Watson made the offer and which was accepted at a price agreed upon.
Whether within the description is included the detached six hundred and twenty-nine acres—the Trevenio survey—is more difficult. The lands described in Baker’s letter are said to lie in a body. That the lands pointed out to Watson by Baker were in contemplation of the parties, and which was supposed to have been included in Trevenio survey, is equally clear to have been in Baker’s mind and also in Watson’s when he made his offer, which was finally accepted. But this does not appear in the writings relied upon as the contract. Nor will the difficulty be removed by resorting to a parol executed contract, for [749]*749while such may be inferred from the testimony, yet as to the Trevenio tract there was no possession given by Baker and taken by Watson, either actual or constructive. Watson’s possession was of the farm, and without occupation in any way of the Trevenio tract.
Watson’s letter of December 19, 1884, addressed to Baker, speaking of "your property,” referring doubtless to what he had been shown as Baker’s lands, etc., offering ten thous- and dollars, may have been intended as applying to the lands he had inspected, and if so, with knowledge of the general locality of the detached part, only that his information was that the tracts cornered together. But we can not reach this conclusion from the words "your property;” and we can not from them impart the two tracts into the written memorandum. We conclude that there was a sufficient memorandum to apply to the main farm tract, but not to the other detached from it.
Watson’s subsequent conduct places him at a disadvantage. It is in evidence that as early as February 7, 1885, he knew that the Trevenio survey was part of his contract. It is included in the unsigned notes for the purchase money prepared at his instance after he had resided on the land a month. It is natural that, having bought a piece of ground, like the old time farmer, “he must needs go and see it.” His own testimony is that he discovered the true locality of this survey about the first of May, 1885, and that soon thereafter he offered to rescind and brought suit. His suit, however, was not brought until August 10, 1885, and Baker testifies that he was first notified of the trouble by the suit. If Watson, on discovering the disconnection of the tracts, had exercised his right to rescind, he should have left the land and property, and should have made demand for his advance upon the trade. By so doing he could have occupied the advantage ground of prompt action. A tender in an offer to rescind should be kept up. He should restore the property. This would not be excused by suit. Upon rescinding, the property would be Baker’s, and Watson had no right to dispose of it.
Having elected to dispose of it even after suit, he is in the attitude of claiming the right to dispose of the personal property under the contract. He can not claim under it and against it.
He would not, however, be precluded from damages, if any, suffered by reason of the mistake, in a deduction from the price.
[750]*750So far as Watson was concerned, it was of no consequence whether the misrepresentation was wilful or innocently made by Baker. The damage was the same, and his rights were the same as to a recovery of the loss sustained.
While we’ are satisfied that the contract was sufficiently shown in the letters and telegrams in evidence, and that the court acted properly in overruling the motion of defendant to excludethem from the jury, we are not fully satisfied but that Watson may have suffered in his contest resisting complete specific performance. In the charge to the jury, while containing substantially the law applicable .to the testimony, a distinction between false representation and innocent mistake on Baker’s part seems to have been recognized. An instruction was asked by Watson, for the purpose of removing this distinction, and it should have been given, or a like charge, informing the jury of the effect of mutual mistake upon question of rescission and upon question of damages if rescission should be refused, and any damages be proven as resulting from such mistake. The charge is as follows: “That if the representations made by Baker concerning the sale of the property in controversy were untrue, but were made by Baker believing them to be true and that Watson acted on said representations and believed them to be true, and that the representations were a material inducement to the trade, and that Baker had better means of informing himself of the facts than Watson, then he, defendant, would be entitled to have the trade rescinded, although there was no positive fraud on Baker’s part, if the other circumstances of the case entitled him to a recission.”
The record shows clearly a mutual mistake in the locality of the Trevenio survey. It can not be brought into the terms of -the contract in writing, nor into an executed parol contract between the parties; although it was in the mind of both parties in February, when the papers were prepared, but which were not signed.
Watson having elected to remain in possession and to dispose of the personal property, will have great difficulty in acquitting himself of laches in acting upon the breach of the con? tract. Yet, he should have the right to an equitable abatement in the price, should the Trevenio survey be excluded from the contract; or in event of a material difference in the value of the entire estate by reason of the tracts being disconnected.
[751]*751The purchase by Baker of the roadway connecting the lands did not remove the diffiulty. It could not alter the locality of the lands though a convenience, and it naturally would be taken into consideration upon the question of damages.
Another view of the main question may be taken, not distinctly made in the pleadings nor briefs of counsel. In 49 Texas, 696, it was held that a suit upon a promissory note given for land “was not an action brought upon a contract for the sale of land, but was upon a promissory note given for the purchase money for land.” And that “although it may not be such a memorandum as satisfies the statute, the maker can not avoid the note which he has given because he has omitted to bind the vendor.” The vendor tendered a deed on the trial, and judgment for the amount of the note and foreclosing the vendor’s lien was affirmed.
In this case Watson by telegram did promise Baker to pay him the twelve thousand dollars. And after payment of the four thousand dollars he again promised to pay the eight thousand, dollars for the land, which was assented to by Baker, It was not necessary that his promise to pay be in writing, (49 Texas, 2, Pitschki v. Anderson.) In consideration for these promises Watson received and retained possession of the farm and valuable stock upon it. He has used the farm and has disposed of all the personal property. Baker has tendered the deed, and it was relevant to the issues for the deed to be admitted in evidence, with evidence of the tender of it. Upon this view of the condition of the parties, it would seem that the relief for 'Watson would be a just abatement in the price by reason of the locality of the Trevenio survey, if there be such difference, and without reference to the good or bad faith of Baker in his representations in the matter. The action of the court upon the right to open and close, as shown in the bill of exceptions, was regular. Upon the issues litigated, the affirmative was on Baker, The contract was denied. He was put upon its proof. Watson was on the defensive. Besides the position of the parties as plaintiff and defendant seems to have been determined by the order of the court in consolidating the two suits. It was acquiesced in by the parties in their repleading with reference to the one suit.
The judgment below will be reversed for the defect in the charge of the court above noted and the refusal to give the •charge asked to correct the defect. Reversed and remanded.
Opinion delivered November 13, 1888.