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Pelletreau v. Brennan

113 A.D. 806 Court Second Department, Decision date 1906-06-15 English

Delivered by Gaynor, J.:

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p. 806
Ella M. Pelletreau, Appellant, v. Lizzie Brennan and Joseph M. May, Respondents.
Second Department,
June 15, 1906.

Headnote

Statute of Frauds—memorandum of agreement to sell lands — evidence dehors admissible to identify lands—liability of principals on contract 'signed by agents—when vendor only can assert defense of statute.
A written contract to sell lands contains every essential necessary for specific performance when it gives the names of the seller and buyer, expresses the consideration and so describes the lands that they may he' identified by-evidence. A description of the premises as “ Clinton and Joralemon street,” is sufficient to enable the lands to he fully identified by evidence dehors. .
When the parties to said contract deal in the city of New York there is a legal inference that the contract refers to lands in said city,
When a vendor tenders performance the vendee cannot defend on the ground that the contract was void, under the Statute of Frauds: ■ „
■Although such written ■ contract provides for the execution o,f a more formal contract, it is nevertheless enforcible.
Although-such contract is signed with the initials of the agents of the'pafties, an action thereon can be maintained against the principals if. the instrument be not sealed. ■
Rich and Miller, JJ., dissented.
Appeal by the plaintiff, Ella M.-Pelletreau, from a judgment of the Supreme Court in favor of the defendants, entered in. the office of the clerk of the county of Kings on the 27th day of February, 1905, upon the decision of the court, rendered after a trial at the Kings County Special Term,’ dismissing the complaint upon tli.e merits..
Suit by the purchaser to" enforce specific performance of -a' contract for the sale of real estate.
The contract is as. follows, signed with the initials of the , defendant May and the plaintiff’s husband-:
. “ May, agree to sell & Pelletreau agree to; -buy Clinton alud Joralemon Street subject to 1st mtg. '
of having two years to run......................... $32,500
2d mtg., 1 year, 6$.................................... 7,500
Cash,.........................,................... ,- 3,300
Lots subject to $1,800,1 year, Qf0, May to take equity..,. 1,700
$45,000 ’
p. 807
'“ Pay $500 down 30 day contract renewal on payment of $500 more of 30 days — May to pay 400 commission to" Y. F. P. & Go. when title passes.
“ Contracts to be signed to-morrow a. m.
“ Contract to be made between Ella M. Pelletreaü.
“ Time to be essence and deposit to be forfeiture of damages.
“Y. F. P.
“ Oct. 12, 1904. “ J. M.”
The defendant May acted for himself and the defendant Brennan in making the contract, and the plaintiff’s brother acted for her. The title of land purchased by the plaintiff was in the name of the defendant Brennan for the defendant May.
The trial court gave judgment for the defendants on the plaintiff’s evidence.
Edward J. McCrossin, for the appellant.
Hugo Hirsh, for the respondents.

The judgment has to be reversed. The findings of fact and conelusions of law are that the contract expresses no consideration, and is so vague and indefinite that a judgment of specific performance cannot be given upon it. The contract contains every essential, i. e., it gives the names of the seller and the buyer, expresses the consideration and describes the land to be conveyed by the defendants. The description, “Clinton and Joralemon street,” suffices, for it enables the land to be identified and fully described by evidence dehors (Waring v. Ayres, 40 N. Y. 357 ; Miller v. Tuck, 95 App. Div. 134 ; Levin v. Dietz, 106 id. 208 ) ; and such evidence was given. As the parties were dealing in the city of Flew York, the legal inference is that the contract refers to land there. That the land to he conveyed by the plaintiff as part consideration is not identified by the contract does not matter; it is only the seller who can raise the question of no written contract (Torres v. Thompson, 29 Misc. Rep. 526 ) ; and the plaintiff tendered performance. That the contract provides for the execution of a more formal contract "does not detract from it; it is enforcible (Pratt v. Hudson River R. R. Co., 21 N. Y. 305 ; Sanders v. Pottlitzer Bros. Fruit Co., 144 id. 209). The writing not being sealed, the action can be main

p. 808
tained by and against, ¡the-principals, for whom their agents signed, although the latter-signed--by- ¡their own names only (Briggs v. Partridge,. 64 N. Y. 357 ).

The jndgment. should be reversed.

Jenks and Hooker, JJ., concurred ; Rich and Miller, JJ., dissented

Jndgment reversed and new trial granted, costs to abide the event,'. ... ¡:. „ ; i- - ., ¡,

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