The Washington times., 1934-05-03
Continued from Page S, Second
Seetion)


ficient description of the thing
sold and Of the price to be paid
for it. 1t is, therefore, an essen
tial element of a contract in writ
ing that it shall contain within
itself a description Of the thing
sold by which it can be known or
identified, and the price to be
paid for it, of the party who sells
it, and the party who buys It,"
The resolution does not create
any obligation on the part Of the
defendant. The language Of the
resolution, and the proceedings
preceding it, merely express the
desire of defendant to acquire the
property in question, upon the
terms stated therein; but the &C.
ton taken included no obligation
on the part of defendant, and was
wholly lacking in the elements OF
mutuality. It merely directed the
purchase upon certain conditions,
and until these conditions were
fulfilled, so far as any obligation
existed under the resolution, the
defendant had the right at any
time to withdraw from the trans
action.
In Corskaddon v. City of South
Bend, 141 Ind. 500, much
stronger resolution was adopted
than the resolution adopted by
the defendant in this case. The
resolution adopted by the city, was
as follows:
Resolved, That the mayor OF
the city be instructed to purchase
the property known in the pro-
ceedingS of this council as the
Corskaddon property, for the sum
Of $4,000 said purchase to be
made subject to the incumbrance
thereon, $4,000 to be paid in
cash and the balance of $4,000
to bear interest at 6 per cent to
run for a time agreed upon by
said mayor and Corskaddon."
A deed was rendered the mayor,
and other steps taken by the ven-
dor to comply with the reSo-
luton. The resolution there was
much stronger than in this case,
in that the name of the vendor
was incorporated in the resolution;
but the court holding that this
did not constitute contract, said:
81. The resolution, upon its
face, does not create an obligation
on the part of the appellee; and,
second, it cannot be amended by
parol. Upon the first of these
propositions, it is perfectly plain
that the resolution and the pro-
ceedings preceding it do no more
than express the preference OF the
common council for the appel
lant's property, and instruct the
mayor to purchase it. 1t is with
out doubt, that, as contract, the
action taken included no obliga-
ton on the part of the appellant,
and was wholly devoid Of the ele-
mentS Of mutually"
The provision Of the Statute OF
Frauds applicable in this District
is found in section 2, title II, D.
c. Code, which provides: mo &C.
ton shall be brought upon
any contract or sale of lands, tene-
ments, or heriditaments, or any in
terest in or concerning them,
." unless the agreement upon
which such action shall be brought,
or some memorandum or note
thereof, shall be in writing, which
need not state the consideration,
and signed by the party to be
charged Herewith or some other
person thereunto by him lawfully
authorized"
There is no memorandum which
passed from the defendant to the
plaintiff, or by any person author
lied to make such memorandum,
that will bring this case within the
provisions of the statute. The
broker Kraft was not the agent Of
either party. While there were
communications in the form of
letters passed between Kraft and
Colvert, the agent of the plaintiff
there was nothing in these that
had any binding effect upon the
defendant.
It is true that plaintiff deposited
q deed through his agent Calvert
with the title company, but the
title company thereby became the
agent of the plaintiff. It is like
wise true that Mr.. Fennell, the
attorney for the defendant, ex-
amined this deed and was familiar
with it's terms, but the only au-
thority vested in Fennell by the
board of directors was to be able
to assure them of good and suffi-
cient title. Fennell, as attorney,
had no authority to bind the de-
fendant in any respect as to the
making of any contract. While the
officers of the defendant club un-
doubtedly knew of the existence of
the deed, the fact remains that no
writing referring to this alleged
contract, signed by one of the par
ties, ever came into the possession
Of the other party. Consequently,
there is nothing either in the ex'
change OF kilograms between the
plaintiff and his agent Calvert, or
the delivery of the deed to the title
company, that will meet the re.
Quirements of the statute as form
ing a contract between these par.
ties.
It is urged, however, that there
was a part performance, which is
sufficient to take the case out of
the statute of frauds. A key to the
house was delivered by Kraft to
the officers of the defendant club