Patt v. Gerst , 149 Ala. 287 ( 1907 )

SIMPSON, J. —

This was an action by appellant (plaintiff) against the appellee (defendant) to recover damages for the breach of an agreement by the defendant to sell certain real estate to the plaintiff. The complaint alleges: That certain conversations took place between plaintiff and one J. F. Baker, claimed by plaintiff to be the agent of defendant. That after said conversations the defendant telegraphed to plaintiff: “Will let you have property for $4,000 cash, and proposition macle Baker. Wire answer.” The plaintiff telegraphed an acceptance of this proposition, and notified defendant that $4,000 had been placed in the First National Bank of Mobile, which could be drawn on by defendant with papers attached. Also that defendant wired in reply: “Will forward deed and agreement soon as Attorney Smith sends our deed and abstract.” The defendant pleaded the general issue, the statute of frauds, and that the plaintiff himself had repudiated the contract and refused to carry out its provisions on his part.

The assignments of error are to the sustaining of certain exceptions to testimony relating to the correspondence between the parties, and a certain deed prepared at the instance of defendant, and which the plaintiff refused to receive. It is. clear that, if all the testimony objected to had been admitted, it would simply show telegrams and letters, in neither of which is there any description of ’the property to be conveyed, nor any statement of the consideration to be paid. The telegram set out in the complaint, besides not giving any description of the land, also states the consideration to be “$4,000 cash and proposition made Baker.” It is evident from the evidence that this latter part of the consideration, which was wholly in parol, was the very matter upon which the minds of the parties never met.

If the deed, drawn up at the instance of the defendant, had been admitted, while it would have shown the description of the land, yet it would have also- shoAvn defendant’s understanding of this other part of the consideration, which the plaintiff entirely repudiates and claims that he never agreed to-. In order to- a compliance with the provisions of the statute of frauds in regard to contracts .for the sale of real estáte, the Avritings “must state the contract with such certainty that its essentials can be known from the memorandum itself, or by reference contained in it to some other Avriting, without recourse to parol proof to supply them.” — 20 Cyc. 258, 260, 270; Carroll v. Powell, 48 Ala. 298; Adams v. McMillan, 7 Port. (Ala.) 73; Nelson v. Shelby Mfg. Co., 96 Ala. 515, 528, 11 South. 695, 38 Am. St. Rep. 116.

It is clear, then, that if all the testimony which Avas sought, to be introduced had been admitted, and all the testimony objected to by plaintiff had been excluded, it would not have made out a prima facie case for the plaintiff. Hence its exclusion Avas error Avitho-ut injury, and the court properly gave the general charge in favor of the defendant.

The judgment of the court is affilined.

Tyson, C. J., and Haralson and Denson, JJ., concur/