34 Barb. 186 | N.Y. Sup. Ct. | 1861
The plaintiff seeks in this action a specific performance of a contract for the sale of lands. The contract set out in the complaint is an agreement for the sale of the real estate in question for the price of $10,000, payable by the assumption on the part of the defendants of certain incumbrances thereon to the amount of $9500, and of $500 in two notes of the defendant Childs, at six and twelve months. The defendant Eiley, in his answer, admits the contract as stated in the complaint, except that the contract price was to be $9500, and denies all knowledge of, or assent to, any agreement to pay the $500 for which the notes of Child were so given, and states that the contract was by parol. The defendant Eiley has paid $1882.25 towards the purchase money, and the defendants went into possession, which however had been restored to the plaintiff before the commencement of this suit. As the contract stated in the answer is essentially different from that set up in the complaint, the contract set up in the complaint being by parol, clearly cannot be specifically enforced. (Fonblanque’s Eq. book 1, chap. 3, sec. 8, note d. Harris v. Knicherbacher, 5 Wend. 638. Willard’s Eq. 282.) In such a case it was not admissible, under the former system of pleading, where there was dispute about the terms of the contract, to establish the same by parol, for that is the very mischief the statute was designed to prevent; and a contract by parol was only enforced when not denied in the answer, upon the principle that, being admitted, no proof of it was requisite, and the statute was thereby waived. (Story, § 755.) If the de
Smith, Johnson and Knox, Justices.]