98 N.J. Eq. 28 | N.J. Ct. of Ch. | 1925
The bill is to compel the defendant to perform his contract, in writing, with the complainants, to buy three adjoining apartment-houses in Newark. The defendant agreed to pay for them $67,000 by assuming a building and loan mortgage of $14,000 on each apartment-house, a second mortgage of $4,000 on each house, pay $9,000 in cash, and give his one-year bond for $4,000 for the balance, secured by a mortgage on the premises. The complainants did not at the time own the property, but had a contract to buy, and were to convey it to the defendant subject to the mortgages, which they were to negotiate. They were able to effect building and loan mortgages for only $13,000. At the hearing they claimed that the defendant had verbally agreed, when it was found that the building and loan association would lend only $13,000 on each apartment-house, to make up the difference by his *29 three $1,000 bonds, each secured by a mortgage on an apartment-house, upon the terms of a building and loan mortgage. As to this the testimony is in sharp conflict, but the issue need not be decided; the judgment rests upon a point of law.
The parol variation is within the fifth section of the statute of frauds, which provides that no action shall be brought on a contract for the sale of land unless it, or a memorandum thereof, be in writing. Comp. Stat. p. 2612. A written contract for the sale of land, with parol modification, will not, against objection, be enforced as modified. 25 R.C.L. 708, and cases. An instructive discussion of the subject, and a collection of the authorities, may be found in the note to Bonicamp v. Starbuck,L.R.A. 1917 B. 141; Brooks v. Wheelock,
The complainants, admitting the rule, contend, however, that the oral modification relates, not to the contract, but to its performance, to which, they argue; the statute does not apply. The statute requires that all the essential terms of a contract for the sale of land, be reduced to writing to qualify it for enforcement by the courts (Schenck v. Spring Lake BeachImprovement Co.,
A substituted performance agreed upon by parol, actually and fully executed, may be set up in defense at law in a suit on a written contract within the statute of frauds. Long v.Hartwell,
The complainants also contend that the defendant is estopped from setting up the statute because he acquiesced in the complainants effecting the building and loan and other mortgages in preparation of performance of the agreement as verbally modified, relying on Church v. Florence Iron Works,
This decision is on the case as made at the hearing and presented by the briefs. The bill makes out a different case. It alleges that the complainants were to convey the three apartment-houses subject to three building and loan mortgages, each in amount not exceeding $14,000, and three mortgages of $4,000 each, which the defendant was to assume, and to pay $9,000 in cash and give a purchase mortgage for the balance of contract price of $67,000. The answer admits, perhaps inadvertently, the contract as alleged. The contract pleaded is not open to the defense interposed at the trial and now upheld. The complainants will amend the bill to conform to the written contract by striking out "not exceeding," or the defendant may amend his answer denying the contract as alleged. Thereupon the bill will be dismissed.