Appeal by plaintiff from the Circuit Court of St. Clair
county; the Hon. EDWARD F. BAREIS, Judge, presiding. Heard in
this court at the September term, 1950. Reversed and remanded.
Opinion filed May 4, 1951. Released for publication May 25, 1951.
MR. PRESIDING JUSTICE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.
This is a suit brought by Lydia M. Classen, plaintiff, for specific performance of an alleged contract, whereby the defendant, Samuel M. Ripley, agreed to convey a tract of land to the plaintiff for the stipulated price of $250 per acre. After several motions pertaining to the pleadings, the circuit court has entered a final order which in effect rejects a tendered second amended complaint and dismisses the suit on the grounds that the description in the alleged contract is too indefinite, uncertain, and ambiguous to sustain a decree for specific performance, and that the contract lacked mutuality. Plaintiff has perfected this appeal from the court's final order.
The purported contract consists of a series of three letters signed by the defendant, of which pertinent parts are as follows: The first letter stated,
". . . Now since you wont say what you will want to pay me for that piece of land I will make you a price of $250 per acre for whatever amount of land there is in that piece 20 acres more or less. . . . If you could have someone help you measure it commencing at Rudolph Press' southeast corner to your line then south to Dintelman's line then you could tell how many acres there are in the piece. . . ."
The second letter states in full,
"I heard you very plain over the phone from St. Louis. You have Mr. Schrader make out the description of that piece of land about 20 acres I think it is back of the lots I sold in the Subdivision along the Smithton road. I dont know just how he will have to describe it but he can see by the plat on file in recorder's office. It is the piece south of your 16 ft. rd. running south to Dintelmans road. He might have to start the description from Rudolph Press northeast corner thence east to your line then south L. Dintelman road thence west to the east line of the subdivision thence north to the beginning. Mr. Schrader will know how to describe it. I hope he will charge $10 for writing the deed and you can deduct that from the price. I will write Geiger later on."
The third letter reads in part,
"I heard you very plain over the telephone yesterday. I am feeling pretty well today. When Mr. Schrader makes out the deed for that piece of land be sure and have him include in same that 50 foot road leading from the road to the property I am deeding you. This 50 foot was left by orders of D.O. Thomas then County Highway Engineer. For some years it was not assessed as my property but later it was put on my tax bill. I had intended to run the road through to your line and lay out acre tracts on both sides both north and south but I never got that far along. Now be sure and have Mr. Schrader include this 50 foot road in the deed. . . ."
Attached to the complaint is a purported survey of the designated tract of land. According to this survey the north boundary of the tract consists of a 16-foot roadway running east and west, and the south boundary consists of a road designated Dintelman Road. It is alleged in the complaint that these two roadways actually exist and have existed for seventy-five years.
The west boundary of the tract so surveyed purports to be a platted subdivision of property consisting of a row of lots fronting upon "Smithton Road." At the northeast corner of the surveyed tract there is one of the lots in the subdivision designated as the "Rudolph Press property" which lies abutting the 16-foot roadway previously mentioned, and the northeast corner of said lot would coincide with the northwest corner of the surveyed tract. The east boundary of the surveyed tract purports to be along a tract designated as "Classen property."
It will be observed that by reference to the second letter above quoted, reference is made to the two roadways which are alleged to constitute existing monuments and as such must be presumed to be available for location by a surveyor. The northeast corner of the tract, by reference to the letter, is fixed as adjoining the Rudolph Press property. Even without this, all four sides are fixed: The west boundary is fixed by reference to a purported recorded plat, and the east boundary by plaintiff's property; the existence of these items can be ascertained by reference to public records.
If, therefore, the public records disclose a plat of lots sold by defendant along the Smithton Road and also disclose property to the east thereof in the name of the plaintiff, and if, furthermore, the two roadways designated as monuments forming the north and south boundaries actually do exist as alleged, no reason is apparent why a surveyor would not be able to locate said tract of land.
The purported plat of lots along the Smithton Road shows a 50-foot roadway running east and west connecting to the Smithton Road on the west and with the described tract of land on the east. The last letter identifies it in several ways, and infers it appears on the plat.
The complaint also alleges acceptance of plaintiff's offer by the defendant and a tender of a sum of money equal to $250 per acre for the ...