Santoro v. Mack

• Decision Date: 02 March 1929
• Citation: 108 Conn. 683,145 A. 273
• Court: Connecticut Supreme Court
• Parties: SANTORO v. MACK ET AL.

145 A. 273

108 Conn. 683

SANTORO v. MACK ET AL.

Supreme Court of Errors of Connecticut.

March 2, 1929

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

Action by Leonardo Santoro against Catherine Mack and others for specific performance of a contract for the sale of real estate and for other relief. Demurrers to the complaint and amended complaint were sustained, and, on failure to plead further, judgment was rendered for defendants, and plaintiff appeals. No error.

Michael V. Blansfield and John E. Whalen, both of Waterbury, for appellant.

William B. Fitzgerald and Ulysses G. Church, both of Waterbury, for appellees.

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

HAINES, J.

The first count of the amended complaint alleged a written agreement between the plaintiff and the defendant Mack, for the sale to the former of certain real estate in Waterbury owned by the latter, the agreement reading as follows:

" Waterbury, Conn., Sept. 24, 1926.

Received from Mr. Leonardo Santoro $100 for a deposit for Mrs Mack's property situated at 1017 N. Main St. said property to be free from all encumbrances except first mortgage of $7500 held by Citizens & Manufacturing Bank and a second mortgage of $2000 held by Nicolo. Said Mrs. Mack is to receive $2500 in cash and bal. and adjustments are to be figured as date of bill.

Agreed price $14,000.

[Signed] Catherine Mack.

Wit.

M. G. Santoro.

Antonio Santoro."

It was further alleged that, relying upon this agreement and induced thereby, the plaintiff incurred obligations to an electrician for preparing estimates for wiring the premises, and to an architect for plans for improvements upon the property, and that he further entered into a written agreement with a prospective buyer of the property which would have yielded the plaintiff a profit of $1,000; and that he had arranged with a banking institution for a loan of $7,000 to apply on the purchase price of the property; but that on October 14, 1926, the defendant Mack conveyed the property to the defendants Ciervo, the latter knowing at the time that she had made the foregoing contract with the plaintiff; and further that the plaintiff had been at all times, and was then ready, willing, and able to carry out his part of the contract. A second count alleged that the defendants wrongfully and fraudulently agreed between themselves to deprive the plaintiff of the benefit of his contract. Upon demurrer to this complaint the court held that the contract between the plaintiff and the defendant Mack was unenforceable, for the reason that the written memorandum thereof did not comply with the requirements of the statute of frauds; and that, as all the claimed grounds of recovery were based upon that contract, the complaint did not state a cause of action.

The first assignment of error is a general one and violates our rule which requires that assignments must be specific. The next four assignments attack the decision of the trial court that the memorandum of sale was insufficient because it failed to set forth the essential terms of the sale under which the purchase price was to be paid, because it did not sufficiently provide how the balance of the $1,900 of the purchase price was to be paid, and because it did not state the time when the conveyance was to be made.

The requirements of a memorandum of sale to satisfy the Statute of Frauds in this state (Gen. St. 1918, § 6130) is too well established to require extended consideration. It must state the contract between the parties with such certainty that the essentials of the contract can be determined from the memorandum itself without the aid of parol proof, either by direct statement or by reference 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. Miller v. Vordenbaum, 105 Conn. 636, 638, 136 A. 382; Shoag v. Sheftel, 99 Conn. 541, 543, 121 A. 799; Gendelman v. Mongillo, 96 Conn. 541, 543, 114 A. 914; Shelinsky v. Foster, 87 Conn. 90, 96, 87 A. 35, Ann.Cas. 1914C, 1007; Corpus Juris, vol. 27, p. 269, § 319, p. 277, § 334.

" The memorandum of the contract need not be the contract itself, but must contain sufficient data whereby a contract satisfying the terms of the prior oral agreement of the parties might be put in extended and customary form without the aid of oral proof." Handy v. Barclay, 98 Conn. 290, 295, 119 A. 227, 228.

A memorandum is insufficient where a decree based thereon would not carry out the true agreement as made by the parties, or where the agreement stated in the memorandum does not express the entire agreement between the parties so these must be supplemented by parol evidence of the negotiations. Gendelman v. Mongillo, 96 Conn. 541, 545, 114 A. 914.

The memorandum before us shows clearly that the defendant Mack received $100 from the plaintiff to apply on the purchase price, which was $14,000; that the property was to remain subject to a mortgage of $7,500 held by the Citizens & Manufacturing Bank and to a second mortgage for $2,000 " held by Nicolo" ; that out of the purchase price the defendant Mack was to receive from the plaintiff $2,500 in cash. These specific provisions account with certainty for $12,100 of the purchase price, but the terms of payment for the balance of $1,900 are not otherwise specified than in the following language: " * * * And bal. and adjustments are to be figured as date of bill." It is at once apparent that the understanding of the parties as to how this $1,900 was to be paid is not indicated, nor is any intimation given as to when the contract was to be performed.

This deficient statement, as to the terms of payment of the balance due, is met by the plaintiff with the claim that, under such circumstances, there is a legal presumption that this shall be paid in cash, citing N.E. D. Holding Co. v. McKinley, 246 N.Y. 40, 157 N.E. 923. This is undoubtedly the rule where no method of payment has in fact been agreed upon by the parties. The presumption rests rather upon the failure to agree than upon the failure to state what was agreed. Swedish-American Nat. Bank v. Merz (Sup.) 179 N.Y.S. 600, 602.

Where the memorandum, as in this case, indicates on its face that there are other terms which were agreed upon, but which are not stated in the memorandum, a presumption that payment of the whole or a part of the purchase price was to be paid in cash does not obtain. Gendelman v. Mongillo, 96 Conn. 541, 546, 114 A. 914; 9 Ann.Cas. pages 1062, 1063.

Moreover, any such presumption in the present case would be rebutted by the specific provision in the memorandum that the amount which the defendant Mack was to realize in cash, in addition to the $100, was to be $2,500 and not $4,400 as would be the case if the presumption controlled.

This memorandum is also silent as to when the contract is to be completed. Here, too, if the parties did not in fact agree upon a time to complete the contract, the law raises a presumption that it is to be done within a reasonable time. This is a rule of wide application, but this memorandum provides that the " bal. and adjustments are to be figured as date of bill." We must assume that this refers to the time when the contract is to be carried out and the papers passed, and it clearly points to the fact that some time was in the contemplation of the parties as one of the terms of the agreement. There is nothing in the memorandum by which the time of the carrying out of the agreement can be determined. In this respect also, the memorandum lacks that certainty which our rule requires. For these reasons we cannot hold the memorandum a sufficient compliance with the rule. A complaint based upon it would not carry out the true and entire agreement of the parties. Harlow v. Parsons Lumber & Hardware Co., 81 Conn. 572, 576, 71 A. 734; Shoag v. Sheftel, 99 Conn. 541, 545, 121 A. 799; Corpus Juris, vol. 27, p. 279, § 335.

The plaintiff further appeals on the ground that the doing by him of certain acts was a " part performance" of the contract, and so takes the case out of the Statute of Frauds. He alleged as such acts the fact that he paid $100 of the purchase price, and that in reliance upon the contract he incurred expenses in procuring the services of an electrician and of an architect, arranged to sell the property for $1,000 more than he was to pay for it, and also arranged for a loan, and gave a mortgage on other property for security therefor.

In those cases where one party in reliance upon the contract has partly performed it to such an extent that a repudiation of the contract by the other party would amount to the perpetration of a fraud, equity looks upon the contract as removed from the operation of the Statute of Frauds and will enforce it by specific performance or give other relief as the case may be. Eaton v. Whitaker, 18 Conn. 222, 229; Andrew v. Babcock, 63 Conn. 109, 119, 26 A. 715; Verzier v. Convard, 75 Conn. 1, 6, 52 A. 255; Corpus Juris, vol. 27, p. 343, § 427.

The rule which we have recognized and enforced in this state is that acts will be held to be in part performance, if they are such as clearly refer to some contract existing between the parties, in relation to the subject-matter in dispute. A less liberal rule has found support in some jurisdictions, holding that the acts must refer to the identical contract set up. Harmonie Club v. Smirnow, 106 Conn. 243, 247, 137 A 769; Bradley v. Loveday, 98 Conn. 315, 319, 119 A. 147; Andrew v. Babcock, 63 Conn. 109, 122, 26 A. 715; Grant v. Grant, 63 Conn. 530, 539, 29 A. 15, 38...