Swain v. Burnette
Before: Haven
Synopsis
Vendor and Purchaser — Parol Contract for Exchange of Lands — Statute of Frauds — Part Performance — Specific Performance. — If one party to an oral agreement for the exchange of lands conveys his own land to the other party, in accordance with the terms of the agreement, it is a sufficient part performance by him to take the agreement out of the statute of frauds and entitlehim to its specific performance by the other party.
Id. — Conditional Delivery of Deed — Unauthorized Agency — Nonacceptance. — If the plaintiff delivered his conveyance on condition that the defendant convey to the plaintiff, and such delivery was made to the defendant’s agent, who was not authorized to accept it, and the defendant thereupon refused to accept it, or to make the exchange orally agreed upon, there is no part performance sufficient to take the agreement out of the statute of frauds.
Id. — Authority of Agent to Procure Exchange — Contract of Principal— Delivery of Deed. —A written agreement authorizing a real estate agent to effect a satisfactory sale or exchange of the land of the principal does not authorize the agent to enter into a binding contract for the exchange, or to accept a deed for the principal, if the principal afterwards makes a contract for the exchange of the land; and a delivery of a deed of land to the agent, by a party claiming to have entered into a contract of exchange with the principal, is not a delivery to the principal.
Id. — Undelivered Deed — Memorandum of Agreement.—A deed of land signed by the grantor, in pursuance of an oral agreement for the exchange of lands, but which is not delivered and is not shown to have contained a memorandum of the oral agreement for the exchange of lands, cannot be regarded as a sufficient memorandum of such oral agreement to take it out of the statute of frauds.
Id. — Letters — Rejection of Proposition—Insufficient Memorandum. —Letters written by the owner of real estate in regard to a negotiation between the parties for an exchange of land, which do not purport to state the terms of any completed agreement, but are simply a rejection of the proposition to make the exchange, do not constitute a sufficient memorandum of an agreement for the exchange, to satisfy the statute of frauds.
Appeal—Non-appealable Order.— An order refusing to modify a judgment is not an appealable order.
Be Haven, J. — This is an action to enforce the specific performance of an alleged agreement for an exchange of lands. The making of the agreement was denied by defendants. The answer alleges that defendant Nellie C. Burnette, who is the wife of the other defendant, E. T. Burnette, is the owner of the land in controversy. The evidence in the record before us shows that the defendant E. T. Burnette employed one Crane, a real estate agent, to effect a sale or an exchange of said land, by a writing the material part of which is as follows: “I will place this property in your hands for sale, and will pay you five per cent commissions on the [568]amount of sale. Price, five thousand dollars. You to pay all advertising expenses. Or you can trade this property for property in Oakland that will be satisfactory to me. I will accept the same as cash.” It appears that Crane, acting under this employment, brought the plaintiff and the defendants together, and it may be inferred from the testimony of Crane that an oral agreement was made between the parties for an exchange of their lands. It was further shown that on July 15, 1884, the plaintiff left with Crane, for the defendants, a deed properly signed and acknowledged by him, in form, conveying to Mrs. Burnette the land which he claims he was to give in exchange for that in controversy, but the defendants refused to accept this deed. It also appears that at some time during the negotiations the defendant Mrs. Burnette signed and acknowledged a deed of the land in controversy. In it the plaintiff was named as grantee; but it was never delivered, nor did Mrs. Burnette in any manner part with its possession, and she finally destroyed it. Its contents were not shown further than that it was sufficient, in form, if delivered, to convey the land which it described. In addition to this, there was also introduced in evidence the following letters written by defendant Mrs. Burnette to the said Crane, in relation to the proposed contract with plaintiff: —
“ Haywards, Cal., June 26,1884.
“ A. E. Crane.
• “Dear Sir, — My husband has returned, and has ascertained from the records of Alameda County, there is a claim against the property you propose exchanging, belonging to Mr. Swain.
“ The claim is known as the Dungan title, now pending in the superior court of Alameda County, and entered February 9, 1882. Therefore you can consider the trade at an end, as you both told me there was no suit over it. You can take the property off your books, as I will not sell the property through you.”
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