Janowski v. Przebieglec

• Decision Date: 28 February 1921
• Docket Number: No. 41.,41.
• Citation: 114 A. 419
• Parties: JANOWSKI et al. v. PRZEBIEGLEC et al.
• Court: New Jersey Supreme Court

114 A. 419

JANOWSKI et al.

v. PRZEBIEGLEC et al.

No. 41.

Court of Errors and Appeals of New Jersey

Feb. 28, 1921.

Appeal from Court of Chancery.

Suit by Walter Janowski and others against Joseph Przebieglec and others. From decree dismissing bill of complaint, plaintiffs appeal. Affirmed.

The following is the opinion of Vice Chancellor Fielder in the court below:

The bill of complaint charges that on April 9, 1920, the parties to this suit entered into an agreement whereby the defendants agreed to convey certain premises to complainants for a specified consideration, of which $100 was to be paid on the execution of the agreement and the balance on the delivery of the deed; that the agreement was on April 11, 1920, reduced to writing, and on that day signed, sealed, acknowledged, and delivered; that three days thereafter defendants notified complainants that they would not carry out the agreement because it was made on Sunday. Complainants pray specific performance of the agreement.

Defendants now move to dismiss the bill on the ground that it discloses no cause of action and in their notice of motion specify as a reason (among others) that the agreement was executed and delivered on April 11, 1920, which date ^fell upon Sunday and therefore the agreement is void under the laws of this state.

The court will take judicial notice that April 11, 1920, fell on a Sunday. Reed v. Wilson, 41 N. J. Law, 29. It appears from the bill of complaint that the negotiations leading up to the written agreement to convey were conducted and concluded on a secular day, but that the terms were reduced to writing on a Sunday, on which day the written agreement was executed and delivered. The parol agreement made on the secular day is unenforceable, in view of section 5 of the statute of frauds (Compiled Statutes, p. 2612), and the only agreement which this court might enforce is the written one.

It is true that, where there has been a partial or full performance of a parol agreement to convey lands, equity may enforce such an agreement notwithstanding the statute of frauds (Cooper v. Colson, 66 N. J. Eq. 328, 58 Atl. 337, 105 Am. St. Rep. 660, 1 Ann. Cas. 997), but the bill alleges no partial or full performance, and, on the contrary, states that on April 14, 1920, defendants notified complainants they would not perform.

Prior to the execution of the agreement on Sunday, the parties had done no more than agree on the terms of a contract which would not be binding...