Summary
In Lee v. Stone, 21 R.I. 123, the length of time the mortgage was to run and the rate of interest to be paid were held to be essential parts of a contract to sell and purchase land, and without a statement of these terms a contract is not enforcible.
Summary of this case from Fleming v. Hanley, Hoye & Co.Opinion
December 30, 1898.
PRESENT: Matteson, C.J., Stiness and Tillinghast, JJ.
(1) Specific Performance. Indefinite Terms of the Agreement. Parol Evidence. An agreement for the purchase of land, and payment therefor in part by mortgages, failed to state the length of time the latter were to run and whether they should bear interest and the rate thereof: — Held, that the agreement was insufficient ground for a bill for specific performance. Quoere, whether allegations in the bill showing the terms of the mortgages, to be proved by parol, could be sustained. The identity of the land referred to in such agreement may be shown by parol. A refusal of the respondent to carry out the contract is a sufficient reason for not tendering a deed of the land within the time limited therefor in the agreement.
BILL IN EQUITY to enforce specific performance of an agreement to purchase land. Heard on demurrer to the bill incorporated with the answer.
PROVIDENCE, R.I., Jan. 3, 1898.
In consideration of one dollar, the receipt whereof is hereby acknowledged, I hereby agree to sell and convey by proper warranty deed to Mary E. Stone or order at any time within thirty days from this date, one certain lot of land numbered 152 on Ohio avenue, on plat of land entitled Washington Park, with all improvements thereon. Payments to be made as follows: price, $3,600, and $1,800 to remain on first mortgage, and $400 on second mortgage, and $1,400 in cash on delivery of deed.
Signed. _____________________________
I hereby agree to purchase the above-described premises and to pay for same as above stated, and according to the above terms.
Signed. _____________________________
Edwin C. Pierce, for complainant.
James M. Merriam and Nathan W. Littlefield, for respondent.
Our opinion is that the demurrer must be sustained because the bill does not show the terms upon which the mortgages were to be given, either as to length of time they were to run or as to whether they were to carry interest, and, if so, at what rate. Williams v. Stewart, 25 Minn. 516; Schmelling v. Kriesel, 45 Wis. 325.
We think that the identity of the land may be shown by parol. Ives v. Armstrong, 5 R.I. 567; Waring v. Ayres, 40 N.Y. 357; Hurley v. Brown, 98 Mass. 545.
The bill sets out a refusal of the respondent to carry out the contract as an excuse for not tendering the deed within the thirty days stipulated in the memorandum. We think that such refusal was a sufficient excuse. Bicknell v. Waterman, 5 R.I. 43.
Whether allegations, to be proved by parol, showing the terms of the mortgage, could be sustained, we do not decide.