McMahon v. Plumb , 88 Conn. 547 ( 1914 )

The claim for a correction of the finding as to the size of the lot pointed out by the defendant to the plaintiff is without merit.

The objections to the testimony of Mrs. Phelan, upon the ground that the defendant cannot be bound by her statements made to the plaintiff, were not well taken. Her agency was fully established by the evidence.

The question asked of the defendant by his counsel, "How much did you pay for the whole tract?", should have been admitted for what it was worth, as relevant evidence of the fair market value of the tract of which lot No. 1 was a part. The ruling was not a material error, since better evidence of the market value of this tract and of lot No. 1 was easily available, and evidently was before the court, as it has found, from the evidence of defendant's witnesses, the fair market value of a lot thirty feet on Beach Avenue and one hundred feet on Milford Point Road to be between $200 and $250.

Complaint is made of the exclusion of the question asked the defendant on his direct examination, "Have you sold the other lots?" The other lots referred to the tract of which lot No. 1, as claimed by the defendant, was a part. The question was claimed for the purpose of showing the good faith of the defendant. He now claims the evidence was admissible because the answer might have shown that the sale of the land made it impossible to decree specific performance of a contract to sell a lot with a frontage on Beach Avenue of ninety feet. No such claim was made on the trial, and it is now too late to make it.

Error is assigned that the court has found, without evidence, the average depth and width of lot No. 1, and that the legal title to it was at the time of the trial in the defendant. These were legitimate inferences from the facts in evidence.

Upon the trial the defendant claimed that the facts did not warrant a judgment decreeing specific performance of Exhibit A, but that the judgment should be for the defendant. The foundation of both claims was that the land was so indefinitely described in the contract as to make it unenforceable in equity. The description of the land conveyed in Exhibit A was, "Lot No. 1 on map of lots at Walnut Beach and filed at the Town Clerk's office at Milford, Connecticut."

Reasonable certainty in the description is an indispensable prerequisite for the enforcement by way of specific performance of a contract to convey land.Hurd v. Hotchkiss, 72 Conn. 472, 480, 45 A. 11. And the element of certainty is a rule of equity equally applicable, whether the contract be verbal or written. Waterman on Specific Performance (Ed. 1881) § 254. The description is sufficiently definite whenever it is reasonably certain from the contract itself, or can be made certain through reference to record, contract, map or fact, by resort to extraneous evidence thereof, whether oral or written. Hodges v. Kowing, 58 Conn. 12,18 A. 979; Nichols v. Johnson, 10 Conn. 192;Hurley v. Brown, 98 Mass. 545; Eaton v. Wilkins,163 Cal. 742, 127 P. 71; Romans v. Langevin, 34 Minn. 312,25 N.W. 638; Troup v. Troup, 87 Pa. 149;Colerick v. Hooper, 3 Ind. 316; 2 Beach on Equity Jurisprudence, § 583; 36 Cyc. 593. Evidence would therefore have been admissible to prove the contents of the map referred to in Exhibit A, and thus, by reference to the map, lot No. 1 might have been identified and the description of the lot made certain. But no such map was on file, nor did any map or sketch of lot No. 1 exist at or before the execution of Exhibit A. Acts done in part performance might have taken the case out of the statute of frauds, if these had been done in pursuance of the contract and had changed the situation of the parties to the contract, as, for example, actual possession taken of, or valuable improvements made upon, the land purchased, or both combined. 4 Pomeroy on Equity Jurisprudence (3d Ed.) § 1409;Wainwright v. Talcott, 60 Conn. 43, 52, 22 A. 484;Smith v. Peterson, 71 W. Va. 364, 76 S.E. 804. Acts such as these would, in themselves, have made the description certain and cured its indefiniteness. Keepers v. Yocum, 84 Kan. 554, 557, 114 P. 1063; Ottumwa,C. F. St. P. Ry. Co. v. McWilliams, 70 Iowa 164,168, 32 N.W. 315.

The record does not disclose any acts amounting to part performance; possession was not taken, nor improvements made by the purchaser. Payment, even of the full consideration, as in this case, does not amount to an act of part performance taking the case out of the statute of frauds. Lester v. Kinne, 37 Conn. 9, 14;Kimberly v. Fox, 27 Conn. 307; 36 Cyc. 650. In Delaware and Maine, and perhaps in a few other States, the rule is different; elsewhere it accords with out rule.

As the description of lot No. 1 in this complaint was, upon its face, capable of being made definite had the map referred to been on file and had there been delineated upon it this lot, the complaint was not demurrable. The defendant was ready to deed the plaintiff a lot having a frontage of thirty feet on Beach Avenue; the plaintiff claimed the lot was to have a frontage of ninety feet. In the effort to support his claim, the plaintiff offered evidence, as he was entitled to, of all the facts leading up to the sale, including the fact that the defendant had pointed out to him, on the ground, the bounds of lot No. 1 as having a frontage of ninety feet on Beach Avenue. The evidence was not offered in order to make the description of the land in the contract certain, nor has the plaintiff's counsel, either in brief or argument, made any such claim. What the parties did preceding the execution of the contract does not tend to identify lot No. 1 nor to apply the description. For such purpose oral evidence to avoid the bar of the statute of frauds would have been inadmissible. All authorities so hold. The description might have been made certain had the plaintiff been able to prove that the defendant had only one lot at Walnut Beach.Hodges v. Kowing, 58 Conn. 12, 18 A. 979; Hurley v.Brown, 98 Mass. 545; Mead v. Parker, 115 Mass. 413,415; Slater v. Smith, 117 Mass. 96, 98; Troup v. Troup,87 Pa. 149; Keepers v. Yocum, 84 Kan. 554, 557, 558,114 P. 1063; Colerick v. Hooper, 3 Ind. 316. The note to Atwood v. Cobb, 26 Amer. Dec. 665, 666 (16 Pick. 227, 33 Mass.), contains numerous instances where courts have permitted indefinite descriptions to be made definite by extraneous evidence. Lot No. 1 was not the only lot the defendant owned at Walnut Beach; he owned a tract having a frontage of two hundred and seventy feet on Beach Avenue. When the reference to the map is eliminated from Exhibit A, the entire description is, "Lot No. 1 . . . at Walnut Beach." A description of that character, where it does not appear that the seller owned only one lot in this location, is fatally indefinite. We cite a few of the many instances in the decisions of descriptions too indefinite to support specific performance. "Our land of 1060 acres," so described in a contract dated "Wilkins Ranch, September 22d 1909." Eaton v. Wilkins, 163 Cal. 742,127 P. 71. "Part of lot No. 200 in the sixth district and second section of said county, containing fifteen acres more or less." Clayton v. Newberry, 138 Ga. 735,76 S.E. 63. "In DeKalb county, being part of lot No. 150 and lot 159, containing 160 acres more or less." Estes v. Winn, 136 Ga. 344, 71 S.E. 470. "One hundred (100) acres of . . . land . . . in Fayette county, Illinois," where there were 600 acres owned by the person referred to. Wetmore v. Watson, 253 Ill. 88,97 N.E. 237.

The defendant was entitled to have had his claim, that upon the facts specific performance could not be decreed, sustained.

There is error and the cause is remanded.

In this opinion the other judges concurred.