Adams v. Manning

STRAUP, C. J.

I concur. I think the memorandum, for several reasons, is wholly insufficient to satisfy the statute of frauds. The evidence, aliunde the memorandum, considered alone or with the memorandum, fails to show a contract complete or certain in its terms. The respondent thus invokes equity to enforce, not a contract sufficiently evidenced by a writing to satisfy the statute of frauds, but one resting partly in writing and partly in parol and which is not even shown to be either complete or certain. When one thus seeks to specifically enforce a contract concerning realty, void because of the statute of frauds, he is required to show by clear and convincing proof, not only elements of completeness and certainty, but equities as well, and as stated in Pomeroy’s Specific Performance of Contract, p. 144, and Pomeroy’s Equity Jurisprudence (3d Ed.) Section 1409, approved in Price v. Lloyd, 31 Utah, 86 86 Pac. 767, 8 L. R. A. (N. S.) 870. Since there is shown neither a contract certain or complete in its terms, nor equities to justify specific performance, I therefore concur.