114 Misc. 546 | N.Y. App. Term. | 1921
The parties were negotiating for the sale by defendant to plaintiff of a parcel of improved realty. They came, wholly orally, to an agreement, and plaintiff made a down payment of $200 on account of the purchase price. According to arrangement, they met on a later day at the office of defendant’s attorney. Some slight readjustments of terms were agreed to, and then a new question arose, involving a chandelier valued by the parties at $15, and defendant agreed to plaintiff’s demand as to that. A written contract was thereupon prepared, and it was signed by the defendant and his wife, but although it would seem — we purposely refrain from so deciding, however—that the minds of the parties met as to all essential particulars, the plaintiff refused to sign and then and thereafter refused to go forward with the matter. Whether the written instrument signed by the defendant correctly embodied the terms agreed upon does not appear, as the learned trial justice refused, upon an objection of plaintiff’s counsel, to admit it in evidence, upon the stated ground
The signature of a vendee of realty is not required to give validity to a contract for its sale; it is only the vendor who must sign. Real Prop. Law, § 259; Quinto v. Alexander, 123 App. Div. 1. But, as the record stands, the question cannot be decided, whether an enforceable contract was made by the signed writing on the part of the defendant and a reciprocal oral engagement on the part of the plaintiff. The plaintiff’s theory upon the trial seems to have been that merely because he did not sign the agreement, he was entitled to recover back his earnest money. That, at least, was the sole consideration moving the trial justice to award judgment for the plaintiff. Plaintiff’s counsel did, indeed, seem to think that it was open to him to show that the minds of the parties did not meet, but the testimony on this head was meagre, and of a merely casual and incidental character, and the matter was not seriously gone into, possibly because of the position consistently held by the learned trial justice that, regardless of any other consideration, the plaintiff must recover because he had not signed an agreement. The informal complaint was for “ money had and received. Payment demanded and refused,” and the answer was a general denial. Whatever plaintiff’s original theory may have been, his theory during the trial seems to have been that upon proof of a failure on his part to sign, and upon that alone, he was entitled to his earnest money. That was a misconception. Assuming, as plaintiff did, that the agreement was unenforceable because of a noncompliance with the realty Statute of Frauds, that of itself did not entitle him to a return of his payment on
The vendor in the case at bar assumed a burden that was not properly his. He made numerous attempts to show that he had acted in good faith, and was at all material times ready, willing and able to carry the transaction through to completion, thus putting the plaintiff in the wrong, but the court ruled that the proofs were immaterial, and excluded them. They were very material in their nature, but they were unnecessary at that stage, for the plaintiff had failed to make his own essential prima facie proofs upon the subject. Had the case been tried upon the proper theory, we should feel called upon to dismiss the complaint, but as the erroneous view of the trial court may very possibly have misled the plaintiff’s counsel, we have decided to send the case back for a new trial.
Lehman and Burr, JJ., concur.
Judgment reversed, new trial ordered, with thirty dollars costs to appellant to abide event.