Mahanay v. Lynde

DRAPEAU, J.

pro

tem.

Action for specific performance of a contract of purchase and sale of real property.

The plaintiff went to the home of the defendant, and there, after a conversation between the plaintiff and his wife, and the defendant and his mother, the parties came to an oral agreement of purchase and sale of a small parcel of real property. The purchase price was to be $1,000; $100 down, and monthly payments of $20 a month on the principal.

In order to bind the bargain the plaintiff gave to the defendant his check for $20, and the defendant gave to the plaintiff his receipt therefor.

There is a conflict in the testimony as to the wording of the receipt, because, some days later, when the parties met at a bank, the defendant told the plaintiff that he did not want to go through with the deal, and the defendant’s mother got possession of the receipt and refused to give it back to the plaintiff. The trial court properly admitted the plaintiff’s oral testimony as to the wording of the receipt. At the trial defendant contended that the receipt is in language to be found in a writing which the defendant’s mother testified was the one she took from the possession of the plaintiff. She said that she delivered it to her attorney, who later on sent it to the plaintiff’s attorney. The language of this

[81]

claimed receipt is materially different from that testified to by the plaintiff as being on the one which was first given to him. The trial court adopted the wording of the receipt as testified to by the plaintiff, and found that the writing was sufficient to satisfy the statute of frauds. We think there is substantial evidence in the record to support this finding.

The trial court adjudged specific performance, in that the plaintiff was to pay to the defendant $100, and that then the plaintiff was to have possession of the premises, and that, thereafter, the plaintiff was to pay to the defendant $20 per month until the purchase price of $1,000 was paid.

Appellant argues that the contract as found by the trial court cannot be thus specifically enforced because: