This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Third, the memorandum must set forth the subject-matter with such certainty that it can be identified without resorting to oral evidence of the intention of the parties direct as to the subject-matter to supplement the terms of the memorandum.1 This principle finds its most frequent application in contracts for the sale of some interest in land. While the memorandum need not give a technical description of the realty contracted for, it still must give sufficient facts to identify it.2 If it is necessary to resort to oral evidence of the intention of the parties direct as to the realty bargained for, the memorandum is insufficient.3 So a contract to mortgage realty including a right of way which is not appurtenant to the realty and which is not described, is not sufficient.4 A memorandum showing that a specific tract was intended, but not describing it further, is insufficient.5 Thus a contract for "one of the lots set aside for sale,"6 for "that lot,"7 or for "four lots of timber, more or less,"8 are each insufficient. So a check showing that it is given as "part payment on coal lands" is insufficient where the vendor owned much more coal land than that sold.9 So a sale of "a strip of land in front of Golden Rule Store and Stent Market" has been held insufficient where such strip is unenclosed and can be identified only by oral evidence.10 So a description by acreage only as a memorandum in the form of a receipt for "thirty acres,"11 or a contract for the "sixty acres,"12 or for "115 acres,"13 or "one third interest in five acres located near said works,"14 are each insufficient. If the memorandum shows that the location of the realty bargained for was left open for future agreement it is insufficient.15 Indeed, in cases of this class there is no contract. The difficulty is deeper than the means of proof. Thus where a tract is to be selected by both parties out of a larger tract, as where the parties were to agree on a tract of forty by one hundred twenty feet out of a certain eighty-acre tract to front on a street16 the memorandum is insufficient. So a description showing a sale of lots out of a larger tract not yet subdivided is insufficient.17 However, a contract to sell ten acres in a consecutive tract out of a tract of forty acres, to have the same average value and quality as the entire tract, has been held sufficient.18 If the tract is to be selected out of a larger tract by one of the parties, a different question arises on which there is a divergence of authority; some courts holding the contract definite and the memorandum sufficient,19 others taking the view that the description in the memorandum is insufficient since it must be supplemented by oral evidence.20 A memorandum which gives the length of the boundary lines without the means of locating them is insufficient.21 Examples of this are as follows: A contract to buy a certain number of feet front on a given avenue on the east side between two designated streets;22 a contract to lease a tract twenty feet square, eight rods south and fifteen east of the northwest comer of a certain tract;23 or a contract to sell "six by ten rods deep to be taken either way " from a house on a tract of land twenty rods square fronting on two streets.24 So a memorandum which gives the courses and distances but does not give a starting point for the lines is insufficient.25 A memorandum which gives a part of one boundary, as by describing the land bounded as adjoining a specified tract is insufficient.26 Whether the place at which the contract is dated can be assumed to be the place where the land is located, to supplement what would otherwise be a deficiency in description, is a question on which courts differ, some holding that this assumption can be made27 and others that it cannot.28
Terlin v. Bush, 39 Or. 498; 65 Pac. 1064; 59 Pac. 706; Harney v. Bur-hans, 91 Wis. 348; 64 N. W. 1031. So of a sheriff's sale on execution, where the statute of frauds applies. Tombs v. Basye, 65 Mo. App. 30.
5 Woodcock v. Merrimon, 122 N. C. 731; 30 S. E. 321.
6McLeod v. Adams, 102 Ga. 533;
27 S. E. 680.
7 Phillips v. Cornelius (Miss.),
28 So. 871.
8 American, etc. Co. v. Steel Co., 101 Fed. 200. (The memorandum is sufficient to bind such principals.)
9Carr v. Lynch (1900), 1 Ch. 613.
10Filby v. Hounsell (1896), 2 Ch. 737.
1 Alabama Mineral Land Co. v. Jackson, 121 Ala. 172: 77 Am. St. Rep. 46; 25 So. 709; Ridgway v. Ingram, 50 Ind. 145; 19 Am. Rep. 706; Fry v. Piatt, 32 Kan. 62; 3 Pac. 781; Sherer v. Trowbridge, 135 Mass. 500; Burgon v. Cabanne, 42 Minn. 267: 44 X. W. US; Lippin-cott v. Bridgewater, 55 N. J. Eq. 208: 36 All. 672; Kling v. Bordner, 65 O. S. 86: 61 X. E. 148; Ferguson v. Stover, 33 Pa. St. 411.
2 Kopp v. Reiter, 146 111. 437; 37 Am. St. Rep. 156; 22 L. R. A. 273; 34 N. E. 042; Edens v. Miller, 147 Ind. 208; 46 N. E. 526.
3 Alba v. Strong, 94 Ala. 163; 10 So. 242; Edens v. Miller, 147 Ind. 208; 46 N. E. 526; Voorheis v. Eit-ing (Ky.), 22 S. W. 80; Weil v. Willard, 55 Mo. App. 376.
4 John F. Fowkes Mfg. Co. v. Met-ealf. 169 Mass. 595; 48 N. E. 848.
5 Lippincott v. Bridgewater, 55 N. J. Eq. 208; 36 Atl. 672; Davis v. Ross (Tenn. Ch. App.), 50 S. W. 650.
6 Williams v. Stritz (Miss.), 17 So. 227.
7 Ray v. Card, 21 R. I. 362; 43 Atl. 846.
8 Douglass v. Bunn, 110 Ga. 159; 35 S. E. 339.
9 Thompson v. Coal Co., 135 Ala. 630; 93 Am. St. Rep. 49; 34 So. 31.
10 Craig v. Zelian, 137 Cal. 105; 69 Pac. 853.
11 Humbert v. Brisbane, 25 S. C. 506.
12Cooley v. Lobdell, 153 N. Y. 596; 47 N. E. 783.
13Wortham v. Smith (Ky.), 66 S. W. 390.
14 Hamilton v. Harvey, 121 111. 469; 2 Am. St. Rep. 118; 13 N. E. 210.
15 Weil v. Willard, 55 Mo. App. 376; Falls of Neuse Mfg. Co. v. Hendricks, 106 N. C. 485; 11 S. E. 568.
16 Scanlon v. Oliver, 42 Minn. 538; 44 N. W. 1031.
17 Chellis v. Grimes, - N. H. -; 56 Atl. 742.