Frabicatore v. Negyesi, 135 A. 441

135 A. 441 | Conn. | 1926

Specific performance is sought of the following written agreement:

Date July 13, 1925.

"Mr. John Negyesi

I sold all my property one house and two lots 100 x 100 for the sum of six thousand dollars ($6,000) to Mr. Angelo Frabicatore and Mr. Pasquale Zaffino.

I received this day July 13, 1925, for deposit ($150) one hundred and fifty.

I promise to leave all the material that is in my property.

John Negyesi Patrick Prince"

Defendants demurred to the complaint on three grounds; the court sustained the demurrer on grounds one and two. We shall only consider ground one — that this contract is within the statute of frauds because it does not describe with certainty, or otherwise identify the real estate referred to in the contract, since it does not state in what State, county, town, city or street the property is situated.

To avoid the statute of frauds, "the note or memorandum of sale, required by the statute, must state the contract with such certainty that its essentials can be known from the memorandum itself, without the aid of parol proof, or by a reference contained therein to some other writing or thing certain." Nichols v.Johnson, 10 Conn. 192, 198. One of these essentials is the subject of the sale. "The description is sufficiently definite whenever it is reasonably certain from the contract itself, or can be made certain through reference to record, contract, map or fact, by resort to extraneous evidence thereof, whether oral or written."McMahon v. Plumb, 88 Conn. 547, 552, 92 A. 113.

We say in Gendelman v. Mongillo, 96 Conn. 541,550, 114 A. 914: "Descriptions which are clearly within the statute are: your land; a piece of land; a piece of land in M; and a given number of acres. These cannot be identified without resort to the negotiations of sale, in order to complete the terms, and this cannot be done." The description in the memorandum before us falls within these classes of descriptions.

Plaintiffs claim that since they have alleged that the real estate described in the memorandum was the only real estate owned by the defendants in Stamford, Connecticut, oral evidence of this fact would have identified the real estate described in the memorandum. The claim requires the admission of oral evidence both to describe the land and then to apply that description. That is never permitted. Proof that this was the only real estate owned by the defendants in Stamford would not prove that they did not own real estate in another, or other communities. The memorandum does not disclose the residence of the parties, nor the place where the agreement was executed. The description has not been made certain by reference to record, contract, map or fact by resort to extraneous evidence. A defect in the terms of the sale in the memorandum "cannot be supplied by parol proof, for that would at once introduce all the mischiefs which the statute was designed to prevent." Riley v. Farnsworth,116 Mass. 223.

We had occasion to determine the precise question involved in this demurrer in Gendelman v. Mongillo,supra, at pages 546-551. Its decision controls the immediate ground of demurrer before us, while its citations so fully illustrate and apply its doctrine as to make further discussion at this time inept. That case followed the earlier cases of Nichols v. Johnson,10 Conn. 192, 198; Hodges v. Kowing, 58 Conn. 12, 20,18 A. 979; McMahon v. Plumb, supra; Shelinsky v.Foster, 87 Conn. 90, 96, 87 A. 35; Kilday v. Schancupp,91 Conn. 29, 98 A. 335; Garber v. Goldstein,92 Conn. 226, 229, 102 A. 605, and has since been followed by Shoag v. Sheftel, 99 Conn. 541,121 A. 799.

There is no error.

In this opinion the other judges concurred, except MALTBIE and HAINES, JS., who dissented.