Franklin v. WeltFranklin v. Welt
“ELIZABETH, N.J. March 16, 1925.
Reсeived from Sigmund Welt one hundred [$100] dollars on account of purchase price of property known as No. 331 Franklin St., Elizabeth, N.J. Purchase price to be $5,000.
Balance of $4,900 in cash on or before ninety [90] days, when a warranty deed will be delivered free and clear of all encumbrances.
Taxes, water rents, fire insurance to be adjusted as to date of passing of title.
We further agree to pay a commission of $175, same to be рaid to Sigmund Welt, Kelly Colgan and P. Whelan, agents.
[Signed] ELLIS H. FRANKLIN [L.S.] Witness — NETTIE M. FRANKLIN [L.S.] LEO P. KELLY SIGMUND WELT [L.S.] P.A. WHELAN”
The defendant, by his answer, denied making the contract and then set up, but not by way of a separate defense, that the porch roof of the premises, the subject оf the sale, encroached on and over the adjoining premises, and that by reason thereof the complainants were unable to convey in accordance with the agreement of sale.
There was annexed to the answer a notice of a motion to strike out the bill on grounds which may be summarized as follows:
1. That the alleged agreement is insufficient to charge the defendant under the statute of frauds.
2. That the allegеd agreement is incomplete and uncertain, in that the property is not described with sufficient exactness and that it contains no promise by defendant to pay the purchase price therein mentioned.
3. That thе agreement is unenforceable because not acknowledged by complainant Nettie M. Franklin, who is a married woman.
4. That the bill does not show a willingness and an ability on the part of the vendors to perform.
At the hеaring, the motion to strike out was denied, but counsel for defendant, desiring to submit a memorandum of authorities on the legal points, was permitted to do so.
The evidence submitted at the hearing showed conclusively that the dеfendant, in company with his agent, Kelly, sought out the complainants at their home, 331 Franklin street, Elizabeth, New Jersey, and after somewhat lengthy negotiations induced them to sell their home to him at the agreed price of $5,000 cash. Either the defendant or his agent, I do not recall which, thereupon prepared the agreement of sale which was immediately signed by both the complainants and the defendant, and the defendant gave the сomplainants his check for $100 on account of the purchase price. A short time prior to the date fixed for settlement the complainants, through their agent, wrote the defendant, advising him that they would be prepared for settlement on the day fixed by the agreement, either at their agent‘s office or at that of the defendant, leaving it to him to choose the place of settlement. This letter was received by the defеndant, but he made no reply thereto. On the day fixed for settlement the complainants attended at their agent‘s office, and after remaining some time executed and acknowledged a deed of conveyаnce of the
1. A memorandum of a contrаct for the sale of land complies with the statute of frauds, though it does not in terms
If there be a written memorandum or note of the agreement, and this be signed by the party to be charged, the statute is satisfied. Ten Eyck v. Saville, 64 N.J. Eq. 611.
Certainly, the contract here in issue complies with all the requirements of the law as announced in these cases. But even if this were not a complete written contract, it is a sufficient memorandum of an oral agreement to satisfy the statute of frauds. Celenando v. Blazejewski, 98 N.J. Eq. 45.
Therе was ample evidence at the trial to establish the terms of the contract of which this writing might be held to be a memorandum. Indeed, I think the defendant‘s own testimony, or at least his testimony in connection with that of his own witnesses, was suffiсient to establish a complete contract which would not materially vary in its terms from the contract alleged in the bill of complaint. There is therefore no legal obstacle here to the enforcemеnt of this contract.
2. The property is described in the agreement as “property known as No. 331 Franklin street, Elizabeth, N.J.” Also, it appeared that the contract was drawn on the premises after a completе inspection of the property by the defendant. There was then and is now no dispute as to the identity or extent of the property which was described. But parol evidence is admissible to identify land mentioned in a contract of sale. Wollenburg v. Rynar, supra; Bateman v. Riley, 72 N.J. Eq. 316.
In Price v. McKay, 53 N.J. Eq. 588, the description in the written contract was “a lot on Bramhall avenue, No. 470,” and this was held sufficient, although no town, city or county was named. A description merely as a certain number on a certain street, the contract being dated at a certain town, is sufficient. 25 R.C.L. 221 § 19; Kilday v. Schancupp, 91 Conn. 29; 98 Atl. Rep. 335; L.R.A. (1917A) 151.
In such a case the place at which the contract bears date is assumed to be the place in which the land is located.
A promise by the defendant to pay the purchase price is fairly inferrable from the writing. Wollenburg v. Ryner, supra. But if there is any uncertainty in this contract because of the omission of any term therefrom, the defendant cannot take advantage of such omission. He, or his agent in his presence, prepared the contract and he is responsible for its incompleteness, if it is incomplete. Krah v. Wassmer, 75 N.J. Eq. 109.
The contract is not void for uncertainty.
3. It is true that the agreement of sale is not acknowledged by the wife. But she is one of the complainants here, tenders herself ready and willing to perform and has already executed and acknowledged a deed of сonveyance of the property to the defendant which he may have. There is now no lack of mutuality. Richards v. Green (E. A.), 23 N.J. Eq. 536; Krah v. Wassmer, supra.
The deed already executed and acknowledged by the wife is sufficient evidence of her willingness to convey. Krah v. Wassmer, supra; Hulmes v. Thorpe, 5 N.J. Eq. 415; South Jersey Furniture Co. v. Dorsey, 95 N.J. Eq. 530; Luczak v. Mariove, 92 N.J. Eq. 377.
Under these circumstances, the fact that the wife did not acknowledge the contract will not bar specific performance.
4. The bill tenders performance by the complainants. The deed, exeсuted and acknowledged, as above mentioned, was tendered at the trial. The objection on the point of willingness and ability to perform is based almost entirely on the existence of the $1,250 mortgage hereinabove referred to and which defendant claims the mortgagee will not permit to remain. I have already held that there was no agreement that this mortgage should remain. Complainants allege in their bill that it was optionаl with the defendant as to whether this mortgage was to be paid or assumed by the defendant at settlement. There was nothing shown at the trial which
The defendant now requests that he be permitted to reopen his case in order to show that the deed which has been tendered incorrectly described the property which is the subject of this suit, and that, therefore, he is not safe in accepting the deed as the title thereunder would not be marketable. This contention is based upon the fact that the deed describes the property аs “lot No. 33 on block No. 36 as laid down on a certain map entitled `Map of the New Manufacturing Town of Elizabethport, N.J.’ (which map is on file in register‘s office of the county of Essex),” whereas the map to which referеnce is made is, in fact, filed in Union county instead of Essex county. The incorrect recital of the filing of the map does not invalidate the deed. The map is in existence and filed in the proper office. If necessary, the deed may be reformed by this court so as to correctly recite the filing of the map.
I will advise a decree for the complainants.