Abramson v. Delrose, Inc.

• Decision Date: 25 May 1955
• Docket Number: Civ. A. No. 1635.
• Parties: Samuel ABRAMSON, Plaintiff, v. DELROSE, Inc., a Delaware Corporation, Edward Bernhardt, Nellie Bernhardt, Lena Berman Rock and Louis Rock, Defendants.
• Court: U.S. District Court — District of Delaware

132 F. Supp. 440

Samuel ABRAMSON, Plaintiff, v. DELROSE, Inc., a Delaware Corporation, Edward Bernhardt, Nellie Bernhardt, Lena Berman Rock and Louis Rock, Defendants.

Civ. A. No. 1635.

United States District Court D. Delaware.

May 25, 1955.

James R. Morford and George L. Sands, (of Morford & Bennethum), Wilmington, Del., for plaintiff.

Samuel F. Keil and Harold Shaffer, (of Keil & Keil), and Clair J. Killoran and Clyde M. England, (of Killoran & Van Brunt), Wilmington, Del., for defendants.

RODNEY, District Judge.

This is a motion for summary judgment as to several distinct causes of action. It appears that the defendants, or some of them, owned a piece of land in Wilmington upon which they desired to erect an apartment house. In May 1950, Bernhardt, for the defendants, engaged the plaintiff, an architect or engineer, to prepare the plans and ascertain the cost of the project. These plans were prepared by September 1950 and the cost subsequently ascertained as over $639,000. It was contemplated that construction should start about January 1, 1951 and require more than a year for completion. Difficulties in financing the project developed and the apartment house was never built. Revised bids were obtained and a sale of the land, with the plans, as a "package deal" was attempted but not consummated.

The agreement between the parties was not in writing and was alleged to contemplate an architect's fee of 5% of the cost of construction.

The complaint alleges four causes of action only three of which are here considered and which may briefly be stated as (1) Breach of Contract, (2) Quantum Meruit, and (4) Reliance by plaintiff upon an alleged misrepresentation of financial condition or report. These causes of action will be considered in order.

1. The first cause of action is based on an alleged breach of contract of the parol agreement of employment. It is conceded that the contract was not to be performed within one year from the making thereof and the answer sets out the invalidity of the action under the Delaware Statute of Frauds, 6 Del.C. § 2714(a), as set out in the footnote.¹

The plaintiff relies upon three separate writings as constituting a compliance with the requirements of the Statute. Before considering these, however, initial notice will be taken of a contention of the plaintiff that the defendants are equitably estopped from pleading the Statute of Frauds. This order of consideration is adopted because, if the defendants are estopped from pleading the defense of the Statute, then consideration of compliance with the Statute is largely obviated.

The plaintiff contends that 75% of the architect's services were rendered in preparing the plans and obtaining bids or estimates and that these services continued over a long period of time. He contends that the action of the defendants in allowing the plaintiff to continue his activities to such an extent would make it unjust and unconscionable to say that the contract was not in writing as provided by the Statute. The plaintiff relies upon the authorities cited in the footnote.² These cases will receive no individual comment. I am of the opinion that here no estoppel exists. It is clear that part performance, as such, does not apply to a case such as that under consideration, it not being a contract concerning the sale of land.³ This is not a case where one party had fully and completely performed his contract and nothing remained but the payment of money by the other party.⁴ No fraud with reference to the nature of the contract has been alleged or shown and no misrepresentation at the inception of the contract. While circumstances may exist making the pleading of the Statute of Frauds inequitable, no such facts are here apparent.

"A mere refusal to perform an oral agreement within the statute, however, is not such fraud as will justify a court in disregarding the statute even though it results in hardship to the plaintiff. His remedy will be limited to quasi contractual actions * * *.⁵"

The defendants, under the facts here present, are not estopped from pleading the Statute. Any other result would necessarily imply that any party to an oral contract, not concerning the sale of lands, who had performed a large portion of his contractual obligation was immune from the operation of the Statute of Frauds.

As to compliance with the Statute. The plaintiff concedes that the contract was not to be performed within the space of one year and that the original agreement was oral. The plaintiff contends, however, that three several writings, when considered together, show compliance with the Statute. Before considering the memoranda, certain general principles should be kept in mind. It is clear that a memorandum, sufficient under the Statute, need not be in one writing but may consist of several writings only one of which need be signed. The requirements of the writings are to some extent shown in Hull v. Brandywine Fibre Products Co.⁶ It is not necessary that the writing or writings be made with the intent to create a sufficient memorandum under the Statute⁷ but the writings must have that effect. The memorandum must speak largely for itself and disclose certain particulars. The Restatement of the Law of Contracts, Sec. 207, at page 278, gives certain matters which must be included in the memorandum. It must show:

"* * * (a) each party to the contract either by his own name, or by such a description as will serve to identify him, or by the name or description of his agent, and "(b) the land, goods or other subject-matter to which the contract relates and "(c) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made. * * *"

We may now consider the three papers alleged to constitute compliance with the Statute. In May 1950 the plaintiff alleges he was engaged as an architect to prepare plans and specifications and obtain bids for the erection of an apartment house and to supervise and approve the construction and he was to be paid a stipulated percentage upon the completion of the building. The bids being somewhat more than expected, financial arrangements were not made and the building was never constructed. It is alleged that in December 1950 the initial contract was amended to provide that the plaintiff's compensation of 5% instead of being payable at the completion of the building was to be paid in four annual payments, the first payment to be made at the completion of the building. In the course of inquiry as to financing the defendant signed the papers, herein called "A" and "B" which, it is contended, comply with the Statute.

"A" was an application by the defendant to a prospective mortgagee which set out the list of proposed subcontracts and liabilities in connection with the project. Under the item "Architect" is the statement "total payment deferred".

"B" was a letter accompanying "A" and addressed to a lawyer in connection with the proposed mortgage. It referred to the location of the proposed apartment, the approximate cost and said:

"* * * Regarding the architect's fees for supervision, I have made arrangements with him whereby he is to be paid in four equal payments over a four year period. The first payment starting at the completion of the building. * * *"

Writing "C", relied upon by the plaintiff, is a written contract between the defendant and one Mattioli, a sub-contractor. Insofar as here material this contract indicates that the plaintiff (Abramson) is the architect and provides that the plans and specifications are the property of the architect and all charges for the use of the same are to be paid for by the owner.

I am of the opinion that the three writings taken individually or collectively do not comply sufficiently with the Statute of Frauds. In writings "A" and "B" no mention is made of any particular architect or engineer and unless writing "C" is read in connection with the others, the architect is not named. There is not shown in any of the writings any internal or direct connection of the three writings as among themselves, or with the alleged contract between the parties to the action. There is no mention of any particular service to be rendered by the plaintiff or the extent of such services; there is no indication of any price, consideration or amount involved and no terms of the contract are set out. These seem to be required by all the authorities.⁸

Godwin v. Collins, 9 Del. 28, 4 Houst. 28, was an equitable action of specific performance of land where the contract was required to be in writing. The Court of Errors and Appeals of Delaware said, 9 Del. at page 55:

"* * * as the agreement is required by the statute to be in writing, the writing must speak for itself; and therefore you can no more supply defects in the agreement than you can supply the want of an agreement. The written agreement must show what the contract between the parties really is, and certainty being an essential element, the agreement must be certain in itself, or capable of being reduced to certainty by something else to which

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