Willig v. Friedberg

• Decision Date: 10 February 1931
• Docket Number: No. 34.,34.
• Citation: 153 A. 535
• Parties: WILLIG v. FRIEDBERG et al.
• Court: New Jersey Supreme Court

153 A. 535

WILLIG

v. FRIEDBERG et al.

No. 34.

Court of Errors and Appeals of New Jersey.

Feb. 10, 1931.

Appeal from Court of Chancery.

Suit by Max B. Willig against Benjamin Friedberg and wife. From a decree dismissing the bill, complainant appeals.

Reversed.

William Elmer Brown, Jr., of Atlantic City, for appellant.

John C. Reed, of Atlantic City, for respondent.

DALY, J.

This was a bill to establish and enforce an alleged trust in lands, and compel the defendant Friedberg to convey to the complainant, Willig, a quarter interest in the premises known as the Imperial Hotel, Atlantic City, and that the defendant be directed to render an accounting of his management and control of the premises.

At the conclusion of the complainant's proofs, the defendant's counsel announced that he closed his case and moved for a dismissal of the bill "on the ground that there is no instrument here signed by this defendant that would take this case out of the statute of frauds." The Vice Chancellor made a short, general statement of the contention of the complainant and the denial of the defendant, and concluded: "This case is within the statute of frauds, unless the complainant can by his proof bring it without that statute. Payment of a part of the purchase money is not an act of part performance, to take this oral contract out of the statute. Cooper v. Colson, 66 N. J. Eq. 328, 58 A. 337, 105 Am. St. Rep. 660, 1 Ann. Cas. 997; Boulanger v. Churchill, 86 N. J. Eq. 96, 97 A. 947." While not questioning the soundness of the decisions cited, it may be said that those cases bear but little, if any, factual analogy to the instant case.

According to the proofs submitted, Willig and Friedberg, who were well acquainted through prior mutual business dealings similar to this one, entered into an oral agreement to purchase the Imperial Hotel property at Atlantic City; Willig to pay one-fourth of the purchase price and to have a one-fourth ownership in the property, Friedberg to pay three-fourths of the purchase price and to have the other three-fourths ownership. Pursuant to this arrangement, which was entered into at the solicitation of Friedberg, a deed dated May 12, 1925, was made from the owners to Friedberg. There is no evidence as to the date when the deed was delivered or recorded. At the time of the conveyance to Friedberg, he assumed and ever since then has continued to control and manage the premises.

The total purchase price of the property was $98,500, and the conveyance was made subject to the lien of three mortgages upon which there was principal due aggregating the sum of $56,900—first mortgage $25,000; second mortgage $12,000; third mortgage $19,900. While the difference between the purchase price and the face of the mortgage is $41,600, there is no evidence as to the amount actually paid by Friedberg to the owner at the time of the delivery of the deed. As to the third mortgage of $19,900, it is reasonable to conclude that the parties knew at the time of their agreement it would have to be met in a short time in order to hold the property, and, as a matter of fact, Willig, in July, 1925, did pay to Friedberg his one-fourth towards such payment, as evidenced by Exhibit C2, hereinafter referred to. This same Exhibit C2 further shows that Willig paid to Friedberg his one-fourth of the difference between the purchase price of the property and the total of the three mortgages thereon at the time of the conveyance. On June 13, 1925, Friedberg went to Willig, and, in the language of Willig: "He says, he made settlement, and this is the share that I ought to give him, and he made out the check himself and I signed it for him." This check, dated June 13, 1925, for $5,448, is in the handwriting of Friedberg, and there is no doubt it was paid by Willig to Friedberg on account of the purchase price of the Imperial Hotel property, and this is acknowledged in the handwriting of Friedberg, the Exhibit C2.

Some time in July, 1925, Friedberg went to Willig's office at Philadelphia and there saw Willig and Willig's son, Samuel, and presented to them the following paper:

"Imperial Hotel

Mortgage &interest

2022203

one fourth

505501

One fourth of investment

One fourth investment

1140066

16455.67

About 3000.00 Bal from Columb

3000

Less 5400

19455.67

(5548

5548

1400767

"We gave Friedberg note for 14,000 before."

This was marked "Exhibit" C2 at the hearing, and is the exhibit hereinbefore referred to. It was testified to by Willig and his son, and it was not denied or disputed by any one, that all of Exhibit C2 was in Friedberg's handwriting, excepting the figures "5448" and the bottom notation "We gave Friedberg note for $14,000 before." These changes or additions to Friedberg's statement, Exhibit C2, were made by Willig's son, Samuel, and they were explained by the son through the following questions and answers:

"Q. Mr. Willig, I notice a memorandum on this paper 'mortgage interest,' $20,222.03, do you know what mortgage that referred to? A. That was a mortgage on the Imperial Hotel which Mr. Friedberg had paid off between the time of the settlement and the time of this little account, and it was, therefore, added to the total investment to determine how much my father still owed him, and that is how those figures were arrived at, he added the $20,222.03 to take one-fourth of that, this is in his handwriting. I am reading from the statement, one-fourth, $5,055.01, one-fourth investment, $11,466, making a total of $16,455.67, and then added another item there of three thousand, which he claimed due him in another transaction between my father and him, making a total of $19,455.00, subtracted from that 5448, the amount of the first check, leaving a balance of $14,000, which is the note given to him at that time.

"Q. The $3,000 item, do I understand, refers to another transaction? A. Another account.

"Q. Between your father and Mr. Friedberg? A. Yes.

"Q. Where was that property? A. Property in Philadelphia, Columbia Avenue, he has here, 'less about $3,000 balance from Columbia,' Columbia Avenue properties."

The note of $41,000, referred to in Exhibit C2, together with interest, was fully paid by Willig, who also subsequently gave Friedberg, on account of the hotel property, two checks amounting to $2,500. These two amounts added to the check of June 13, 1925, for $5,448, and deducting from the total thereof the $3,000 which was for the Philadelphia property, referred to in Exhibit C2 and explained by Willig's son, show that Friedberg received the sum of $18,498 from Willig in payment of Willig's one-fourth share in the hotel...