Cook v. Mielke

ALLAN, J., pro tem. Plaintiffs and appellants seek specific performance of a contract to purchase real property. As proof of the contract they rely upon a series of letters exchanged between the parties as furnishing the note or memorandum required by section 1624 of the Civil Code. Since all of the transactions between the parties relied on to prove the agreement of sale were had by correspondence, it follows that these letters must show first, that there was a contract between the parties and second, that there was a sufficient note or memorandum thereof to satisfy the requirements of the statute of frauds.

Appellants rest their proof of the alleged agreement upon five letters, as follows:

A letter from Cook to Mrs. Mielke, dated June 7, 1933, in which he offers to purchase her ranch for “a total of $8,000, possession to be given upon completion of the deal; $5,000 cash and the balance of $3,000 in a second mortgage at 6 per cent interest to be held by yourself ... 30% of each year’s crop -to be applied against the principal and interest”. Mrs. Mielke replied that “I would accept your offer if you would assume the $3,000 mortgage against the place”.

On June 27th Cook, in response, wrote to Mrs. Mielke as follows:

“In reference to handling the deal for the full $8,000 I am afraid that is out of the question for me . . .

[738]“I am not certain yet but I believe that I will be able to raise $6,000 to pay on the place instead of $5,000, bnt of that I am not certain yet. If so, it would leave only $2,000 for you to carry. That is the very best I can offer.”

In reply to this letter Mrs. Mielke wrote on July 3d:

“Just received your letter of the 27th. and in answer will say that I will take you up on your proposition in the last letter, $6,000 down with a $2,000 balance to carry. I have a Mr. Guy Lewis looking after my place so suppose he rented it to the Armenians. He never wrote me but they could be given notice. So you could see him. Let me hear from you soon.”

On July 10th/ Cook wrote Mrs. Mielke:

“I am in receipt of your letter of the 3rd inst. in which you accept my offer of $6,000 cash and a $2,000 mortgage which is to be paid out from 30 per cent of each year’s crop. On a basis of your acceptance I am ready to proceed to raise the $6,000 cash.