Majority
p. 372William Wright, Plaintiff and Appellant, v. Henry A. Weeks, Edward Woore and Wife, and Julius Raynor and Wife, Defendants and Respondents. (Before Boswobth, Hoffman and Pierrfpont, J. J.) Heard, June 7th; decided, July 3d, 1858.
Headnote
1. A writing signed by the owner of lands and delivered to W. W., to whom he has leased the same for one year, by which he says, “ I will sell W. W., at any time within three months from April 1, 1857, the premises (describing them) for the sum of six thousand five hundred dollars upon the terms as specified, ” is not a sufficient compliance with the New York statute of frauds, which requires that the consideration should be expressed in the writing.2. A contract in such terms, though in writing, does not bind the owner of the land and will not be enforced in equity by a decree for its specific performance.
3. Parol evidence will not be received to prove that at the time such writing was signed, there was a specific verbal arrangement and agreement fixing the time and manner in which the consideration was to be paid and secured if W. W. concluded to purchase.
This action was tried at Special Term before Ob. J. Duer (without a jury), on the 5th November, 1857.
The action was brought to compel the specific performance of an alleged agreement by the defendant Weeks, to convey to the plaintiff three lots of ground in the city of New York, with the buildings thereon.
No question arose on the pleadings and it is unnecessary to state their contents further than to say that Woore and Raynor, with their wives respectively, were made parties upon allega
p. 373
tions that since the making of the agreement, but with notice of the plaintiff’s claim, Woore and Bay nor had purchased the premises and received a conveyance thereof from Weeks.
On the 11th of March, 1857, Weeks executed and delivered to the plaintiff a lease of the three lots of ground (Nos. 157,159 and 161 Goerck street), with the stables, &e., thereon, for the term of one year from the 1st day of April then next, at a rent of $650, payable in advance quarterly, at the beginning of each quarter. This lease was executed by both parties and delivered, and after-wards and before the parties separated, the defendant Weeks wrote and signed a writing in the words following, that is to say:
“ This is is to certify that I hereby consent to the reletting of the stables on the premises 157, 159 and 161 Goerck street, and will sell the said premises to the said William Wright, at any time within three months from April 1, 1857, for the sum of six thousand five hundred dollars, upon the terms as specified.
“March 11,1857.” “Henry A. Weeks.”
The plaintiff took possession of the premises, and was in possession at the time of the trial. At which time the term mentioned in the lease had not expired.
On the trial evidence was offered by the plaintiff, that at the time the papers were signed there was a parol agreement as to the manner in which the $6,500 should be paid and secured, if the plaintiff purchased the premises. That in that case the plaintiff was to pay $1,500 on the 1st of July, 1857; $1,000 on the 1st May, 1858, and was to assume the payment of a mortgage for $4,000, which was already an incumbrance on the premises. Any rent paid before the expiration of the three months was to be allowed on the first payment of $1,500.
The Court held the evidence inadmissible, and the plaintiff excepted.
It is not material to state the other evidence. When the plaintiff. rested, the Court dismissed the complaint, “ on the ground that the agreement was defective in not stating the consideration in full.” From the judgment for the defendants thereupon entered, the plaintiff appealed.
M P. Gowks, for the plaintiff (appellant).
p. 374I. The contract is sufficient within the Statute of Frauds. 1. It is signed by the party to be charged, and that is a sufficient signing of it. (Statute of Frauds, 2 R. S., 135; McCrea v. Purmont, 16 Wend., 460 ; 1 Edw. Ch’y R., 5; 14 John. R., 484). 2. It expresses the consideration, viz., $6,500. II. The agreement itself being sufficient, it was.competent to show when that consideration should be paid, and in what it should be paid. 1. The statute is complied with when the amount of consideration is expressed. The agreement defining the premises, fixing the price of the ^purchase, and the time within which the sale should be made, expresses all that the statute requires. This is evident because a parol agreement extending the time of payment, may be given in evidence. ( 3 John., 528 ; 1 Johns. Ca., 22.) Substantially that is this case; for admit that by the terms of the agreement the whole consideration would have been payable at once and in cash, yet the parties could agree that the time should be extended, and that a mortgage on the premises which the defendant would have had to raise, should be left on and assumed by plaintiff. A fortiori. If such a subsequent parol agreement would have been upheld, a similar agreement made at the time the written agreement was signed would have been sufficient. Hone of the essential elements of the contract required to be put in writing, are changed or varied. Ho proof was offered or put in, which would not have been admissible, had it been respecting an agreement made by parol subsequent to the written agreement. The proof was, therefore, as we respectfully submit, improperly rejected, and the judgment for dismissal of complaint should be set aside and a new trial ordered. I. The writing upon which the plaintiff relies is not an agreement, but a mere proposition, which was not accepted and at no time bound the plaintiff to purchase, or afforded to the
Francis Byrne, for the defendants (respondents).
p. 375defendant Weeks a means of enforcing a liability upon the plaintiff. (Mactiers, Admr's, &c., v. Frith, 6 Wend., 103 ; Tucker v. Woods, 12 Johns. R., 190; Burnet v. Bisco, 4 id., 235 ; Getman v. Getman, 1 Barb. Ch’y R., 499; Reynolds v. Dunkirk R. R. Co., 17 Barb., 613 .) II. The writing contains no mutuality of obligation between the plaintiff and the defendant Weeks. It is not like the case where both parties are bound at the instant of execution, with a right to one party to annul it, or where it says in the agreement, I A. B. agree to sell, and I 0. D. agree to purchase. III. The writing does not contain the whole of the consideration, but requires parol evidence to show what is meant by “ the terms as specified;” and therefore does not satisfy the Statute of Frauds, which requires the consideration to be expressed. (2 R. S., p. 135, old paging, § 8; Weed v. Clark, 4 Sand. S. C. R., 31.) IV. A contract ambiguous in its terms affecting real estate ( or an interest therein) should not be favored so as to be enforced specifically. (Acker et al. v. Phoenix, 4 Paige, 305.) V. A consideration should not be allowed to be proved by parol to change a title to lands. (2 Cow. and Hill’s Notes to Phil. Ev., p. 530, &c.)
By the Court.
—The question in the case is, whether the agreement is void by the Statute of Frauds. Upon this trial the complaint was dismissed, and (as we think), properly. Every agreement of this kind is void unless in writing and “expressing the consideration."
The expression “six thousand five hundred dollars upon the terms as specified,” presents an ambiguity, patent upon the face of the contract, and which parol evidence is not admissible to explain, and being unexplained, the contract is void, the consi deration not being fully expressed in writing.
It is only partially expressed in writing, and the writing furnishes no means of discovering the full consideration.
This can only be ascertained by a resort to unwritten evidence which is not admissible. (Weed v. Clark, 4 Sand. S. C. R., 31; 2 R. S., 135, § 8.)
Judgment affirmed, with costs.