Boehly v. Mansing

102 N.Y.S. 171 | N.Y. Sup. Ct. | 1907

Sutherland, J.

The evidence shows that, on or about March 27, 1906, the defendant offered plaintiffs $4,000 for the premises owned by them, which offer the plaintiffs accepted; and it was agreed that the transfer was to be consummated May first, and ont of the purchase price the defendant was to be credited with $2,200, the amount of an outstanding mortgage, which was to be assumed by the purchaser. The defendant did not contradict the evidence offered by the plaintiffs as to the making of the contract; and the sole defense is that the defendant was not bound to complete the purchase, he not having signed any written agreement therefor.

The plaintiffs, the owners of the premises, did sign a memorandum which was written by the defendant and reads as follows:

"March 27, 1906.

“Received from John W. Mansing Ten dollars ($10) as part payment on my hole place on the R. W. O. Railroad on Clifford St. if lot that was take for Street is given back by city it is to go to John W. Mansing.'

“ The price to be four thousand dollars (4,000). This go in afect the 1st of May, 1906.

“ Jacob Boehly.

“ Ross Boehly."

The defendant paid the $10 referred to in the memorandum and took the paper away with him. He not only absolutely promised to make the purchase and pay the price stated, but endeavored afterward to sell the premises to a third party, representing himself as the purchaser thereof.

The contract thus made between plaintiffs and defendant is mutually enforceable although the written memorandum thereof was signed only by the owners of the land to be sold.

The Real Property Law (Laws of 1896, chap. 547, § 224) says: “A contract for the leasing for a longer period than one year, or for the sale of any real property or an interest therein, is void, unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the lessor or grantor, or by his lawfully authorized agent.”

The memorandum signed by the grantors seems to cover the essential features required by the statute; and,'it being shown that the defendant promised to take the property and pay the consideration named, the fact that he did not sign the memorandum is no defense. Earl v. Campbell, 14 How. Pr. 330; Webster v. Zielly, 52 Barb. 482; Briggs v. Partridge, 64 N. Y. 357, 363, 364; Kittle v. Stueve, 10 Misc. Rep. 696.

The learned counsel for the defendant has cited numerous cases holding that a contract for the sale of land cannot be enforced unless it is mutual and obligatory upon both vendor and vendee, and there is no dispute as to the soundness of this proposition. It does not follow, however, that a contract cannot be obligatory upon the purchaser unless he expresses his assent thereto by signing his name. Omission by the purchaser to sign might be strongly indicative of an intention to treat the contract as a mere option; but, if the owner of the land signs the contract or memorandum so as to satisfy the statute'quoted above, and the purchaser unreservedly agrees to take the property and pay the purchase price, although his promise is expressed by word of mouth only, the contract is mutually obligatory and can be enforced by either party against the other. It will be observed that the dictum in the opinion of Judge Gray in Palmer v. Gould, 144 N. Y. 671, referred to by defendant’s counsel as asserting the nonliability of a vendee who has not signed a written contract, is not concurred 'in by the other members of the court. See page 684. The remedy of specific performance is open to the vendors. Crary v. Smith, 2 N. Y. 60; Brown v. Haff, 5 Paige, 240.

Accordingly, the plaintiffs are entitled to a decree for specific performance in the usual form, with costs of this iction.

Judgment for plaintiffs, with costs.