Richman v. Richman

• Decision Date: 20 October 1934
• Parties: RICHMAN v. RICHMAN.
• Court: New Jersey Court of Chancery

175 A. 179

RICHMAN

v. RICHMAN.

Court of Chancery of New Jersey.

Oct. 20, 1934.

Syllabus by the Court.

1. Specific performance of a parol agreement for the sale of land will not be decreed when the terms of the agreement are not clearly proved to the satisfaction of the court.

2. Possession, in order that it may of itself constitute a part performance of a verbal contract for the sale of land, must be connected with the contract and, if referable to some other cause, it will not be a part performance to take such contract out of the statute of frauds.

3. Payment of a part, or even the whole of the purchase money, under a verbal agreement for the sale of land, is not an act of part performance to take the contract out of the statute of frauds, nor are other acts merely ancillary to such an oral agreement, such as searches drawing deed and making surveys, sufficient so to do.

Suit by William H. Richman against William Richman.

Bill dismissed.

Isaac W. Eason, of Camden (Raymond L. Siris, of Camden, of counsel), for complainant.

Waddington & Mathews, of Camden, for defendant.

SOOY, Vice Chancellor.

Complainant seeks a decree for specific performance of a verbal contract for the sale of lands in Salem county. Defendant pleads, inter alia, the statute of frauds.

Relief must be denied for the following reasons:

1. The terms of the contract, as alleged by complainant, are not clearly proved to the satisfaction of the court.

2. The alleged acts of part performance on the part of the complainant, in so far as there is proof of any part performance, are not sufficient to take the case out of the statute of frauds.

The contract, as alleged by the complainant in his complaint, is that on or about January 20, 1934, defendant agreed to sell to the complainant, and complainant agreed to buy from the defendant, for a consideration of $1,400, the premises described in the bill of complaint, and the complainant says: "The nature and terms of the agreement were as follows:—The said William Richman was to obtain the services of J. Hartley Nixon, * * * to prepare the deed of conveyance. The said William Richman and Flora S. Richman, his wife, were to execute the deed and the deed was then to be left in escrow with the said J. Hartley Nixon. The said complainant was in his turn to receive the deed from the said J. Hartley Nixon upon the payment to said Nixon of the said $1400.00."

It appears from the evidence that the defendant, William Richman, did not obtain the services of Nixon to prepare the deed, but that complainant, through his father, his agent, did employ Mr. Nixon, and it further appears that the defendant and his wife did execute a deed of conveyance for the property in question and delivered it to Nixon, and that said delivery was made on or about January 22, 1934, and it further appears that on January 23, 1934, complainant paid to Nixon $100 on account of the purchase price of the property, after an inspection of the deed. It further appears that on or about January 30, 1934, the defendant withdrew the deed from Nixon's possession, and that on February 22, 1934, complainant, then knowing that the deed had been withdrawn from the office of Nixon, delivered to Nixon the balance of the purchase price in the form of a certified check.

The defendant, in his answer, denies that the alleged verbal agreement was as stated by the complainant and says that there was, in fact, a verbal agreement, under the terms of which he (the defendant) was to execute to the complainant a deed for the locus in quo for a consideration of $1,400, which was to be paid when the deed was delivered, "and in the further consideration that the notes of Clement B. Richman at the Woodstown National Bank & Trust Company should be paid and the moneys advanced by William Richman should be paid, or arrangements made for their payment out of the sale of lots from the premises conveyed."

The only dispute as to the terms of the oral agreement is, therefore, whether or not the defendant agreed to convey for a consideration of $1,400, and nothing more, or whether he agreed to convey for $1,400 and have secured the notes of Clement B. Richman in the Woodstown National Bank & Trust Company, on which he (the defendant) was an indorser, and whether the further consideration was that other indebtedness of Clement B. Richman to the defendant should be likewise secured.

Without a recital of the testimony given in behalf of both of the parties, I find that the complainant has not clearly proved that the verbal agreement was as he contends it was, and after a review of the whole range of the testimony I am unable to say that the complainant has carried the burden of proving dearly the terms of the contract as alleged. I am convinced that the proof in support of the defendant's contention as to the terms of the contract is as worthy of belief as that of the complainant.

In Brown v. Brown, 33 N. J. Eq. 650, the Court of Errors and Appeals held: "A specific performance will not be decreed unless the existence and terms of the contract be clearly proved."

The court, in the above case, citing Clow v. Taylor, 27 N. J. Eq. 418, and Cooper v. Carlisle, 17 N. J. Eq. 525, said: "Nor will it...