Levin v. Dietz

• Decision Date: 23 February 1909
• Citation: 87 N.E. 454,194 N.Y. 376
• Parties: LEVIN et al. v. DIETZ.
• Court: New York Court of Appeals Court of Appeals

194 N.Y. 376

87 N.E. 454

LEVIN et al.

v.DIETZ.

Court of Appeals of New York.

Feb. 23, 1909.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Louis Levin and another against James E. Dietz. From a judgment and order of the Appellate Division (119 App. Div. 875,104 N. Y. Supp. 1131), affirming a judgment for plaintiffs (48 Misc. Rep. 593,96 N. Y. Supp. 468), defendant appeals. Reversed, and new trial awarded.

The action was brought by the respondents as vendees to enforce the specific performance of a contract claimed to have been made by the appellant for the sale of certain real estate. The facts relied on as constituting an enforceable contract are set forth in the findings of fact, and are quite brief. It is there stated that the appellant was the owner of the premises in question, and that ‘on December 1, 1904, plaintiff and defendant and said Dakin [a broker authorized by the defendant to sell the real estate in question] met and discussed a sale of the property * * * for $16,500; that on December 3, 1904, defendant wrote and signed a letter addressed to plaintiffs, in which he stated that he would mail the deeds of said property to certain brokers in Brooklyn, and requiring plaintiffs to be present on December 5th at a place indicated in the letter, with $16,500 in cash, and that they would receive a deed of said property; that on the day last mentioned the defendant wrote and signed a letter addressed to said Dakin, * * * in which the defendant stated that he had written the intending purchasers * * * [meaning plaintiffs] to be ready at the office of Jackson & Dombek on December 5, 1904, at 3 o'clock p. m., and to have the money ready, and that the property would then be turned over; * * * that the plaintiffs were present at the time and place on the day mentioned, * * * and * * * produced and tendered the sum of $16,500, and demanded a deed of the premises, * * * and that the defendant was not then and there present, and that no deed of said premises was offered to plaintiffs.’ There was no finding of any other or different contract, by parol or otherwise, than that above set forth.

Headley M. Greene, for appellant.

Frank H. Platt, for respondents.

HISCOCK, J. (after stating the facts as above).

Respondents as vendees are seeking to compel the appellant as vendor to specifically perform a contract for the sale of real estate, and he is resisting on various grounds. We deem it unnecessary to discuss more than two of the questions involved in the controversy. We shall assume, simply for the purposes of this discussion, that the letters signed by the appellant and set forth in the findings already quoted constituted a sufficient compliance with the requirements of the statute of frauds. After making this assumption, however, there remain the other questions whether there was any contract binding respondents to buy the real estate, which it is claimed appellant agreed to sell, and if not, whether a court of equity, at the suit of a party not himself bound, will enforce performance by his adversary. We think that both of these questions must be answered in the negative, and that it must be held that the respondents were not under any obligation to buy appellant's land, and that therefore there was lack of consideration for the latter's contract, and lack of that mutuality of obligation, which are both essential to the successful prosecution of this action.

It has sometimes been intimated, in earlier cases in other jurisdictions, if not in this state, that the mere physical acceptance and attempted enforcement by one party of a contract unilateral in form, executed by another, made the former a party to and bound by the contract. This doctrine, however, has not been adopted or affirmed by later decisions in this state, even if elsewhere. In certain cases cited by the respondents the court has enforced a contract signed by only one party, but in these cases it expressly appeared, where the agreement sought to be enforced was one to buy, that the seller had agreed by parol to sell upon the terms mentioned in the paper signed by the purchaser (Mason v. Decker, 72 N. Y. 595, 28 Am. Rep. 190); or that the written agreement sought to be enforced gave an option which the party seeking to enforce had expressly accepted within the term of its life (Pettibone v. Moore, 75 Hun, 461, 27 N. Y. Supp. 455;Jones v. Barnes, 105 App. Div. 287,94 N. Y. Supp. 695), and under these circumstances it was held that there was a ‘binding agreement’ or a ‘completed bargain,’ and that the written contract, although unilateral in form, could be enforced. We regard those cases as decided on principles not applicable to this one, where there is not claimed to have been any express agreement by the vendees to buy, and where there has been no acceptance by them of the promise of the vendor, except such as was involved in their offer to perform at a time when he had withdrawn from his promise. On such facts we see no opportunity to claim that the respondents were under any obligation to buy appellant's land, or that there was any mutuality of obligation, and thus we come to the remaining question.

The decision in this state of the question whether equity will enforce against one party performance of a contract not imposing mutual obligations on the other has been attended by more or less confusion and conflict of authorities. This was early exemplified by the opinions of Chancellor Kent in two cases. In the early case of Benedict v. Lynch (1 Johns. Ch. 370, 373,7 Am. Dec. 484) he wrote, in an action for specific performance of a contract relating to the sale of real estate: ‘I need not stay to examine how far the objection of a want of mutuality is applicable to this contract, since the decision can be placed with more satisfaction upon the intrinsic merits of the case. But the point being stated by the counsel, I am unwilling to pass it by, without observing that it has been ruled in several cases [citing them] that a bill for a specific performance will not be sustained, if the remedy be not mutual, or where one party only is bound by the agreement. This doctrine received a very clear illustration, and an explicit sanction, in a late decision by Lord Redesdale. * * * Though there are other cases in which an agreement has not been deemed within the statute of frauds, and a specific performance has been decreed, when the contract was signed only by the party sought to be charged, * * * yet the contrary opinion appears, from the most recent decisions, to be now prevailing.’ Later, in the...