Miller v. Vordenbaum

• Decision Date: 02 March 1927
• Citation: 136 A. 382,105 Conn. 636
• Court: Connecticut Supreme Court
• Parties: MILLER v. VORDENBAUM ET AL.

136 A. 382

105 Conn. 636

MILLER v. VORDENBAUM ET AL.

Supreme Court of Errors of Connecticut.

March 2, 1927

Appeal from Superior Court, New Haven County; Arthur F. Ells and Isaac Wolfe, Judges.

Action by Louis Miller against John Vordenbaum and others for damages for breach of land sale contract. Demurrer to the complaint was sustained, and, on plaintiff's failure to plead over, judgment was entered for defendants, and plaintiff appeals. No error.

Louis Feinmark and Nathan Reback, both of New Haven, for appellant.

Charles S. Hamilton, of New Haven, for appellees.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.

HAINES, J.

The only question presented by this appeal relates to the sufficiency of a certain written contract to satisfy our statute of frauds. The complaint sets up that the parties executed this contract for the sale of certain property in New Haven known as No. 257 Winchester avenue, and gives the terms of the contract, and recites the claimed breach thereof by the defendants. No fair question can be raised but that the contract states the terms of the sale with sufficient exactness to satisfy the requirements of the statute, except in one particular. A part of the statement of the consideration is as follows:

" By assumption of a first mortgage, ______ dollars. By assumption of second mortgage, ______ dollars. By giving mortgage back on said premises, $4,400. Said last mortgage is to be at 6 per cent., with the principal payable as follows When building is put up."

It is provided that the transaction shall be completed and the balance of the purchase price paid in the above manner on or before 14 days from the date of the contract.

A demurrer to the complaint was interposed; the court sustained it; and, after the plaintiff had failed to plead over judgment was rendered for the defendants and plaintiff appealed. Among other grounds, the demurrer alleged that the amount of neither the first nor the second mortgage referred to is given, nor the date when payable, the person to whom payable, the terms of payment or the rate of interest; that the time of payment of the mortgage of $4,400 stipulated for, not being otherwise stated than " when building is up," is too vague and uncertain for enforcement, in that the building is in no way described, nor any means given to determine when it is to be erected.

The relevant portions of our statute of frauds read as follows:

" No civil action shall be maintained * * * upon any agreement for the sale of real estate, or any interest in or concerning it, * * * unless such agreement or some memorandum thereof, be made in writing, and signed by the party to be charged therewith, or his agent." General Statutes, § 6130.

Questions as to the sufficiency of writings between the parties to meet the legal requirements of this statute have often been before this court, and we have uniformly tested the writing by the general rule, now well established, that--

" ‘ the note or memorandum of sale, required by the statute, must state the contract with such certainty, that its essentials can be known from the memorandum itself, without the aid of parol proof, or by a reference contained therein to some other writing or thing certain; and these essentials must at least consist of the subject of the sale, the terms of it and the parties to it, so as to furnish evidence of a complete agreement.’ " Gendelman v. Mongillo, 96 Conn. 541, 543, 114 A. 914, 915; Handy v. Barclay, 98 Conn. 290, 295, 119 A. 227; Shoag v. Sheftel, 99 Conn. 541, 543, 121 A. 799; Shelinsky v. Foster, 87 Conn. 90, 97, 87 A. 35, Ann.Cas. 1914C, 1007; Nichols v. Johnson, 10 Conn. 192, 198.

The appellant concedes that the...