
    OSBORNE v. MOORE.
    (No. 382-3564.)
    (Commission of Appeals of Texas, Section A.
    Jan. 31, 1923.)
    1. Frauds, statute of ®=»||3(2) — To comply with statute, writing must show essential terms without paro! proof.
    To comply with Rev. St. 1911, art. 3905, the writing, whether a formal contract or a mere memorandum, must contain the essential terms of a contract, expressed with such certainty that it may be understood without recourse to parol evidence to show the intention of the parties.
    2. Frauds, statute of 113(2) — Writing need not contain ail stipulations agreed to, and is sufficient against seller if it be signed by him and shows agreement to sell particular land involved in suit to enforce the same.
    The rule that a writing) to satisfy the statute, must show essential terms, without resort to parol proof, does not require that the writing shall contain all the stipulations agreed to by the parties, but it will be deemed sufficient, in a suit against a seller for specific performance, if it be signed by him and shows an agreement to sell or convey the particular land involved in the suit.
    3. Frauds, statute of <®=o!IO(I) — Writing must in itself or by reference furnish means to identify land to be conveyed.
    No part of a writing, to satisfy the statute of frauds, in an action against a seller for specific performance, is more essential than the description by which the subject-matter thereof is to be identified. The writing must furnish, in itself or by reference to some other writing, the means or data by which the particular land to be conveyed can be identified.
    4. Frauds, statute of 106(1) — Moaning of words “deal” and “bind deal” stated, and effect of indorsement on check determined as referring to sale of house or block.
    A “deal” between two parties includes any transaction of any kind between them, and when applied to a transaction concerning a house or block does not imply an agreement to sell or convey the same, and an indorsement on a check “to bind deal” in relation thereto may refer to an agreement to sell or convey, or it may refer to an entirely different kind of transaction, as an agreement to rent or lease the property.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Deal— Dealing.]
    5. Frauds, .statute of <®==>I58(3) — Parol evidence not admissible to prove promise to sell or convey.
    The promise to sell or convey being an important element of a contract, parol evidence is not admissible to prove it as the real kind or character 'of the transaction actually agreed on by the parties.
    6. Frauds, statute of <§mol07(1) — Memorandum on chock held insufficient to show ownership of property to be conveyed.
    When the description of the property to be conveyed is of doubtful sufficiency, ownership is an important element, and where the owner of the property referred to in a check on which a memorandum was indorsed is not stat-' ed, it will not be inferred, to support the memorandum, otherwise insufficient, that the payee in the check is the owner, such an inference not being a necessary one.
    7. Frauds, statute of <®=n|IO(l) — That check in part payment for house and block is drawn on bank in certain city held not to support inference that property referred to in memorandum thereon is located at such place.
    Where the memorandum on a check given in part payment of an oral agreement to convey land does not show in what town, city, county, or state the house and block referred to therein are situated, it will not be inferred that the property is situated at Mineral Wells, Tex., simply because the check is given on a bank in Mineral Wells; such fact having no probative force.
    Appeal from Court of Civil Appeals of Sec- > ,ond Supreme Judicial District.
    Suit by William Osborne against John T. Moore. Judgment for defendant, and plaintiff appealed to the Court of Civil Appeals, which certified questions to the Supreme Court.
    Questions answered.
    S. D. Goswick and Penix, Miller, Perkins & Dean, all of Mineral Wells, for appellant.
    Gross, Gross & Zively and Ritchie & Rans-pot, all of Mineral Wells, for appellee.
   GALLAGHER, P. J.

This is a suit by William Osborne,1 as plaintiff, against John T. Moore, as defendant, for specific performance of a verbal contract by which defendant agreed to sell and plaintiff agreed to buy a block of land, together with a six-room house thereon, situated on North Oak street, in the city of Mineral Wells, and particularly described as block 11 of the Wiggins addition to said city. The defendant; among other defenses, invoked the statute of frauds. The writing offered by plaintiff as conpliance with the requirements of said statute was a check, which, together with the memorandum thereon, reads as follows:

“Mineral Wells, Texas, March 3, 1919. No. -. The Bank of Mineral Wells 38-241 (Unincorporated): Pay to John T. Moore or order, $100.09, one hundred and no/100 dollars. To bind deal on 1 block and 6-r'oom house on North Oak St. Wm. Osborne. Accepted. Hunter & Graves, by M. D.- Hunter, Agent.” •

The plaintiff, in connection with said check, offered evidence of M. D. Hunter that he was the duly authorized agent of the defendant for the sale of said property; that he sold the same to plaintiff, and accepted said check from plaintiff to bind the trades and as earnest money thereon. The defendant objected to the introduction of said check in evidence on the following grounds:

“That the same was insufficient as a contract in writing for the sale and purchase of the real estate; that said instrument does not show that it was given in a transaction involving the sale and purchase of property nor does it sufficiently describe the property nor give its location; and that said instrument is too vague, uncertain, and indefinite to form a basis of plaintiff’s suit for specific performance:^

The trial court sustained the objection and refused to admit the check in evidence and rendered judgment for the defendant. Plaintiff appealed. The Court of Civil Appeals, being unable to entirely agree- upon the law of the case, certified to the Supreme Court the following question:

“Did the trial court err in excluding said check and written memorandum?”

The statute of frauds of this state provides that no action shall be brought upon any contract for the sale of real estate or the lease thereof for a longer term than one year, unless the promise or agreement upon which the same is brought or some memorandum thereof shall be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully autlibrized. Rev. St. art. 3965.

It is the general rule that, to constitute compliance with the provisions of this statute, the writing, whether a formal contract or a mere memorandum, must contain the essential terms of a contract, expressed with such certainity that it may be understood without recourse to parol evidence to show the intention of the parties. Jones v. Carver, 59 Tex. 293, 295; 25 R. C. L. p. 645, § 276 ; 20 Cyc. p. 258. This rule, however, as construed by our Supreme Court, does not require that the writing shall contain all the stipulations agreed to by the parties, and the writing will be deemed sufficient in a suit against the seller for specific performance, if it be signed by him and show an agreement to sell or convey the particular land involved in the suit. Morrison v. Dailey (Tex. Sup.) 6 S. W. 426.

No part of such contráet is more essential than the description by which the subject-matter thereof is to be identified. With reference to the description in such eases,.our Supreme Court has uniformly held that the writing must furnish in itself, or by reference to some other writing, the means or data by which the particular land to be conveyed can be identified. Jones v. Carver, 59 Tex. 293, 295; Patton v. Rucker, 29 Tex. 402, 409; Johnson v. Granger, 51 Tex. 42, 44, 45; Zanderson v. Sullivan, 91 Tex. 499, 503, 44 S. W. 484; Coker v. Roberts, 71 Tex. 597, 601, 602, 9 S. W. 665.

We do not think the check under consideration meets either of these requirements. It certainly doés not contain an express promise to sell or convey any land, nor do we think such promise is necessarily implied by the language used in the memorandum thereon. A “deal” between two parties includes any transaction of any kind between them. 17 C, J. 1153. When applied to a transaction concerning a house and block, it does not necessarily imply an agreement to sell or convey the same. The indorsement, “to bind deal,” may refer to an agreement to sell or convey, or it may refer to an entirely different kind of transaction, such, for instance, as an agreement to rent or lease the property. The receipt held to constitute a sufficient compliance with the statute in Morrison v. Dailey, supra, recited that the signer had sold the property to the party to whom it was given. The receipt held a ' sufficient compliance with the statute in Pulton v. Robinson, 55 Tex. 401, recited that the money for which it was given, was received in part payment for the land described therein. The receipts referred to and discussed in the case of Peters v. Phillips, 19 Tex. 70, 74, 70 Am. Dec. 319, all disclosed expressly or by necessary implication an agreement to sell or convey. Parol evidence is not admissible to prove such an important element of the contract as the real kind or character of the transaction actually agreed upon by the parties.

The cheek and memorandum thereon under consideration in this case described the property as “one block and 6-room house on North Oak street.” It does not further 'describe the land. Every other element of description is left to inference or to be supplied by parol. When the description of the property tq be conveyed is of doubtful sufficiency, ownership is an important element. Slaughter v. Dallas, 101 Tex. 315, 107 S. W. 48; Taffinder v. Merrill, 95 Tex. 95, 101, 65 S. W. 177, 93 Am. St. Rep. 814; Pierson v. Sanger Bros., 93 Tex. 160, 164, 53 S. W. 1012; Watson v. Baker, 71 Tex. 739, 9 S. W. 867. The owner of the property referred to in said memorandum is not stated. We are left to-infer that it belonged to defendant, Moore, because he is payee in the cheek. Such inference is not a nesessary one, and will not be-indulged to support a writing otherwise insufficient. Jones v. Carver, 59 Tex. 293; Penn v. Yellow Pine Lumber Co., 35 Tex. Civ. App. 181, 79 S. W. 842 (writ refused) ; Rosen v. Phelps (Tex. Civ. App.) 160 S. W. 104 (writ refused); Kellner v. Ramdohr (Tex. Civ. App.) 207 S. W. 169, 171.

The memorandum on said check does not show in what town, city, county, or state the house and block referred to therein are situated. We are asked to infer that they are situated at Mineral Wells, Tex., because the chect is given on a Mineral Wells bank. We do not think this fact of any probative force. Kellner v. Ramdohr, supra.

The check and memorandum thereon, construed together, do not sufficiently, describe the house and block referred to therein to identify the same, nor to afford a sufficient basis for the decree of specific performance sought in this case. Jones v. Carver, 59 Tex. 293; Johnson v. Granger, 51 Tex. 42; Coker v. Roberts, 71 Tex, 597, 601, 602, 9 S. W. 665; Slaughter v. Dallas, 101 Tex. 315, 107 S. W. 48; Zanderson v. Sullivan, 91 Tex. 499, 503, 44 S. W. 484; Penn v. Texas Yellow Pine Lumber Co., 35 Tex. Civ. App. 181, 79 S. W. 842 (writ refused); Rosen v. Phelps (Tex. Civ. App.) 160 S. W. 104 (writ refused) ; Cusenbary v. Lattimer, 28 Tex. Civ. App. 217, 67 S. W. 187 (writ refused).

We answer the question propounded as follows : The trial court did not err in excluding sfild check and written memorandum.

OURETON, C. J.

The opinion of the Commission of Appeals, answering certified questions, is adopted and ordered certified to the Court of Civil Appeals. 
      (gc^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     