Elliott v. Owen

94 S.E.2d 833 (1956)

244 N.C. 684

B. P. ELLIOTT v. Richard OWEN.

No. 400.

Supreme Court of North Carolina.

October 31, 1956.

Royster & Royster, Durham, for plaintiff, appellee.

C. J. Gates and M. E. Johnson, Durham, for defendant, appellant.

PARKER, Justice.

This is a suit to enforce specific performance of a written memorandum allegedly given for the sale of a house and *834 lot. The burden was on the plaintiff to show that the memorandum was executed in compliance with the Statute of Frauds.

The written memorandum does not even indicate the name of a vendee. The courts have held with great uniformity that the substantive parts of the contract or memorandum for the sale of property, to be sufficient to satisfy the Statute of Frauds, must appear in the writing; therefore, the name, or a sufficient description of the party seeking enforcement of the contract or memorandum, is indispensable, because without it no complete contract is shown. The authorities are clear that such a contract or memorandum is fatally defective, unless the buyer or vendee is therein identified. Grafton v. Cummings, 99 U.S. 100, 25 L. Ed. 366; Lewis v. Wood, 153 Mass. 321, 26 N.E. 862, 11 L.R.A. 143; Kamens v. Anderson, 99 N.J.Eq. 490, 133 A. 718; Oglesby Grocery Co. v. Williams Mfg. Co., 112 Ga. 359, 37 S.E. 372; Kohlbrecher v. Guettermann, 329 Ill. 246, 160 N.E. 142; Dewar v. Mintoft, 1912, 2 K.B. 373; 70 A.L.R. at pages 196 et seq.; 49 Am.Jur., Statute of Frauds, p. 649; 37 C.J.S., Frauds, Statute of § 193.

This Court said in Smith v. Joyce, 214 N.C. 602, 200 S.E. 431, 433: "In order to constitute an enforceable contract within the statute of frauds, the written memorandum, though it may be informal, must be sufficiently definite to show the essential elements of a valid contract. It must embody the terms of the contract, names of vendor and vendee and a description of the land to be conveyed, at least sufficiently definite to be aided by parol. Gwathney v. Cason, 74 N.C. 5; Hall v. Misenheimer, 137 N.C. 183, 49 S.E. 104; Buckhorn Land & Timber Co. v. Yarbrough, 179 N.C. 335, 102 S.E. 630; Keith v. Bailey, 185 N.C. 262, 116 S.E. 729. The memorandum need not be contained in a single document but may consist of several papers properly connected together. As was said in Mayer v. Adrian, 77 N.C. 83: `It [the memorandum] may be one or many pieces of paper, provided the several pieces are so connected physically or by internal reference that there can be no uncertainty as to their meaning and effect when taken together. But this connection cannot be shown by extrinsic evidence.' Simpson v. [Beaufort County] Lumber Co., 193 N.C. 454, 137 S.E. 311."

Mayer v. Adrian, 77 N.C. 83, was an action for specific performance. The Court said: "The agreement must adequately express the intent and obligation of the parties. Parol evidence cannot be received to supply anything which is wanting in the writing to make it the agreement on which the parties rely. * * * Who are the parties in this memorandum of sale? It is settled to be indispensable that it should show not only who is the person to be charged, but also who is the bargainor. The name of the purchaser is required by statute to be signed. So, no question can be made of the necessity of his name in the writing. But it is equally well established that the name, or a sufficient description, of the other party is indispensable. `How,' said Mansfield, C. J., `can that be said to be a contract or memorandum of a contract which does not state who are the contracting parties?' Champion v. Plummer, 4 B. and P., 253; 3 Pars, on Contr., 13 and note; Benjamin on Sales, 169."

In an agreement of sale there can be no contract without both a vendor and vendee. There can be no sale without a buyer. The memorandum here is insufficient, because no buyer therein is identified in the slightest degree.

Defendant's assignment of error that the trial court erred in overruling his motion for judgment of nonsuit is good.

The judgment below is

Reversed.

JOHNSON, J., not sitting.