148 A. 772 | N.J. | 1930
As we read the so-called "agreement of sale," which is set out substantially in full in the opinion of the vice-chancellor, ubisupra, it is on its face incomplete, and on its face it contemplates a "formal contract" which naturally would settle *533 certain terms not stipulated in the existing paper; noticeably, the details of the first mortgage, subject to which the conveyance is to be made (except the term of five years which is stated in the paper) and also of the second mortgage. Assuming that the offer of cash in lieu of the latter would obviate the difficulty in that regard, the first mortgage remains unsettled.
There was no first mortgage in existence when this paper was signed, as the Lafayette corporation had no title, but only a contract of sale. They did have title when the decree under review was made, and had executed a purchase-money mortgage for $70,000 payable in installments, and had actually paid off some $15,000 of the principal thereon.
The court of chancery, starting with what we consider a false premise (i.e., that the paper could be regarded as a complete contract even though preliminary and contemplating a formal contract) proceeded, on the theory of the line of cases typified by Luczak v. Mariove,
Holding, as we do, that the paper is on its face incomplete, and contemplates later completion by treaty and the execution of a contract containing the essential omitted terms, the whole structure of the decree falls. Venino v. Naegele,
With respect to the leading case of Wharton v. Stoutenburgh,
The fact that the further payment of $4,000 was made as provided in the paper now under review, does not help matters. That it amounted to a part performance so as to take the case out of the statute of frauds, is expressly disclaimed in appellant's brief. As evidence of intent to consider the paper a binding contract it is not persuasive, in view of the surrounding circumstances, even if competent.
The decree will be reversed and the cause remanded with directions to enter a decree dismissing the bill.
For affirmance — None.
For reversal — THE CHIEF-JUSTICE, PARKER, KALISCH, BLACK, CAMPBELL, LLOYD, CASE, BODINE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 13.