213 A.D. 439 | N.Y. App. Div. | 1925
This action is in partition. The sole question arising here and to be disposed of on this appeal is as to the existence and validity of the alleged agreement set up by the defendant Mapes in her counterclaim.
The defense of the Statute of Frauds to the counterclaim of the defendant Mapes is alleged as a second separate reply to said counterclaim in the amended reply of these appellants. The statute so pleaded is section 259 of the Real Property Law (formerly enacted in 1896 as section 224 of the Real Property Law), which provides as follows: “A contract for the leasing for a longer, period than one year, or for the sale, of any real property, or an interest therein, is void, unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the lessor or grantor, or by his lawfully authorized agent.”
The defendant Mapes alleges a contract pursuant to which Elijah F. Purdy agreed to devise to her all his interest in the premises in question, a contract which under the authorities falls squarely within the class of contracts referred to in the statute above quoted. Mrs. Mapes founds her claim upon such an express contract. There is no pretense that she claims upon any implied contract to recover the value of services rendered. So far as this action is concerned, her claim, if she has one, stands solely upon the contract she has alleged and upon no other ground. (Banta v. Banta, 103 App. Div. 172.)
In view of the provisions of the statute it is obvious that proof of her claim must be either (1) an agreement in writing expressing the consideration and signed by E. F. Purdy or his lawfully authorized agent, or (2) performance by her of acts unequivocally referable'to such an agreement, which alone and without the aid of words of promise point with certainty and definiteness to the existence of such a contract.
No writing such as is contemplated by the statute was offered upon the trial. There was introduced in evidence over the objection and exception of these appellants a paper marked “ Defendant Mapes’ Exhibit 29.” This paper was not signed by any one. It was written by the witness Daly at the dictation of Mr. Purdy; and after it was written out the witness read it over to Mr. Purdy, who stated “ That won’t do.” On another occasion Mr. Henry
Counsel for the appellants was then requested to produce the paper referred to by Miss Purdy. In reply counsel produced a paper stating that he did not know if that was the paper that the witness referred to. It was offered in evidence and excluded as incompetent, irrelevant and immaterial, as not signed by anybody and not binding upon anybody. It appears, however, in the record as defendant Mapes’ Exhibit 38 for identification. It is obvious, therefore, that the defendant Mapes failed to establish the contract she alleges by that form of evidence.
Witnesses called for the defendant Mapes testified over the objection and exception of these appellants to having heard conversations between Mrs. Mapes and E. F. Purdy, which if correctly reported by the witnesses, would tend to show existence of an oral contract such as is alleged as the basis of the counterclaim. Motions made by these appellants to strike out all such testimony were denied and the testimony was allowed to stand and to go to the jury. Such testimony should not have been admitted and should now be disregarded for the reason that the only effect thereof was to tend to show the possible existence of an oral promise which the statute declares to be void.
Courts of equity under certain circumstances and'in order to prevent the Statute of Frauds being used as an instrument for the perpetration of a fraud do, upon evidence of performance of a certain character, disregard the provisions of the statute and decree to be done that which the performance of such acts shows should have been done; but in so acting equity bases its relief solely upon acts and never upon words. Equity will grant relief only when such acts unequivocally refer to the existence of a contract, and when the acts alone, without the aid of words of promise, point with certainty and definiteness to the existence of a contract.
The witness Daly testified to the effect that Mrs. Mapes nursed
The witness Matilda C. Kirchner testified that Mr. Purdy had an operation performed on' him in her house “ and of course I had to take care of him, except only when Mrs. Mapes would come, she, of course, came every day, every morning, every noon and night; ” that Mrs. Mapes attended to giving Mr. Purdy his medicines and dressing his arm; that these attentions continued for three months while Mr. Purdy was in the home of the witness, and that afterwaids when Mr. Purdy had'returned to Mrs. Mapes’ home witness saw Mrs. Mapes doing acts tending to Mr. Purdy’s comfort. The witness Frederick Meschko also testified to having seen Mrs. Mapes on occasions render services of similar nature to Mr. Purdy.
This testimony failed to show performance of acts of the character and extent necessary to establish the contract upon which the respondent Mapes bases her claim.
The principles above stated are well fortified by authorities in this State, which authorities likewise establish the character and extent of the acts of performance necessary to move a court of equity to grant relief.
In Woolley v. Stewart (222 N. Y. 347) it is said: “ The acts must, however, be so clear, certain and definite in their object and design as to refer to a complete and perfect agreement of which they are a part execution — must be unequivocal in their character and must have reference to the carrying out of the agreement. An act which admits of explanation without reference to the alleged oral contract or a contract of the same general nature and purpose is not, in general, admitted to constitute a part performance.”
In Burns v. McCormick (233 N. Y. 230, 232) it is said: “ There must be performance ‘ unequivocally referable ’ to the agreement, performance which alone and without the aid of words of promise is unintelligible or at least extraordinary unless as an incident of ownership, assured, if not existing. * * * What is done must itself supply the key to what is promised. It is not enough that what is promised may give significance to what is done. The
In Sleeth v. Sampson (237 N. Y. 69, 73) it is said: “ To be thus effective, they must be of such a nature as to be ‘ unintelligible or at least extraordinary ’ unless related to a contract to convey an interest in land. * * * The payment of money is not enough, unless followed by other acts, as, for example, possession or improvements * * *. Acts merely ancillary or preliminary to performance are not acts of part performance within the equitable doctrine.”
While the similarity of the circumstances in the instant case with those in Burns v. McCormick (supra) is striking, the instant case presents even stronger reasons for sustaining the defense of the statute than were.presented in Burns v. McCormick (supra). In that case claimants were actually upon the premises in question. They surrendered a home, sold out a business and boarded and cared for the old man during his lifetime, paying the food bills for him as well as for themselves and doing the work of housekeepers. In the instant case the claimant makes no pretense of being on the property at any time; She had no possession, gave up no home, parted with no business and while tending, nursing and caring for the old man she asked and received payment for his board, first at the rate of twenty-five dollars per month, which she subsequently increased to thirty dollars, and later still increased to forty dollars per month. If as found in Burns v. McCormick (supra) the acts of performance were equivocal still greater reason exists for finding them equivocal in this case. In Burns v. McCormick (supra) they were found to be equivocal for the reasons, as stated by the court, that the board that was paid by the claimants might have been given in return for lodging, might have been merely an advance to be refunded in whole or in part; that time and care might have been bestowed from a vague anticipation that the affection and gratitude so claimed would in the long run insure some indefinite reward, particularly as there were ties of kinship between one of the plaintiffs and the owner.
All those observations and reasons exist in the instant case, even to the extent that there were ties of kinship between the
It is claimed on behalf of the defendant Mapes that these appellants might not avail themselves of the defense of the statute because a confidential relation existed between the defendant Mapes, Mr. Purdy and his sister, Elvira Purdy, the effect of which gave rise to the implication of a trust in respect of the property for the benefit of the defendant Mapes; that to refuse to enforce the rights of the defendant Mapes under such an implied trust would be to use the Statute of Frauds to perpetrate a fraud rather than to prevent one; and that, therefore, these appellants should be estopped from asserting that no contract existed. But from the terms of the statute and from the reasoning in Burns v. McCormick (supra) these contentions of counsel are without merit.
In Burns v. McCormick (supra) it was held that no confidential relation had been abused; that no inducement had been offered with the preconceived intention that it would later be ignored; that the most that could, be said against the alleged promisor was that he had made a promise which the law did not compel him to keep; and that afterwards he failed to keep it. And further the court says (at p. 235): “ We cannot even say of his failure that it was willful. He had made a will before the promise. Negligence or mere inertia may have postponed the making of another. The plaintiffs left the preservation of their agreement, if they had one, to the fallible memory of witnesses. The law exacts a writing.”
In the instant case we have the fact that Mr. Purdy made a will before the alleged promise. That will is found to have been admitted to probate. It was, therefore, his last will. There can be no reason, therefore, for holding in this case that there has been any abuse of a confidential relationship. If the alleged promisor in Burns v. McCormick (supra) were guilty of no such abuse, it cannot be said that Mr. Purdy was; and he being innocent of any such offense, it is impossible to attribute such an offense to his successors in title.
It was claimed by the respondent Mapes on the trial that Elvira Purdy, the sister of Elijah, knew of the existence of the alleged
Furthermore, it appears, any information Elvira might have acquired and any approval she might have expressed was long after the time the alleged agreement is said to have been made. In this respect the finding at Special Term above alluded to is contrary to the evidence. Elvira neither induced the agreement to be entered into, nor is she shown to have had any information about it until four months after it was said to have been made., She could then neither alter nor change any agreement if one had been made, nor was there any duty resting upon her to do so.
The purpose of the Statute of Frauds, as declared by the Court of Appeals, is to prevent mischief that the statute would suppress, and equity in dealing with the provisions of the statute does not ignore its provisions.
Quoting further from the opinion in Burns v. McCormick (supra), the following language is enlightening on this point. At page 234 we read: “ It [the Statute of Frauds] is ' intended to prevent a recurrence of the mischief ’ which the statute would suppress * * *. The peril of perjury and error is latent in the spoken promise. Such, at least, is the warning of the statute, the estimate of policy that finds expression in its mandate. Equity, in assuming what is in substance a dispensing power, does not treat the statute as irrelevant, nor ignore the warning altogether. It declines to act on words, though the legal remedy is imperfect, unless the words are confirmed and illuminated by deeds. A power of dispensation, departing from the letter in supposed adherence to the spirit, involves an assumption of jurisdiction easily abused, and justified only within the limits imposed by history and precedent. The power is not exercised unless the policy of the law is saved.”
That there never was any definite agreement between the respondent Mapes and Mr. Purdy is clearly demonstrated by the fact that as late as the year 1913 the parties undertook to then come to an agreement wholly different in its terms and provisions from that under which the respondent Mapes claims.
Under the Statute of Frauds and the cases above cited, and in view of the policy of the law as laid down in Hamlin v. Stevens (supra), I am of the opinion that the defendant Mapes has failed to prove a contract either by writing or by satisfactory proof of an oral contract, and that her claim in this action, that she is entitled to the property left by Elijah Purdy, is without foundation either in law or in equity. (Robinson v. Munn, 238 N. Y. 40.)
. The orders appealed from should be reversed; the motion made at Special Term to set aside the verdict, so far as it relates to the alleged contract should be granted, and the interlocutory judgment'
Clarke, P. J., Dowling, Merrell and McAvoy, JJ., concur.
Orders reversed, motion to set aside verdict so far as it relates to alleged contract granted, and interlocutory judgment modified accordingly, with costs to appellants payable out of the estate. Settle orders on notice.