Willmott v. Giarraputo
| Decision Date | 05 March 1959 |
| Citation | 184 N.Y.S.2d 97,157 N.E.2d 282,5 N.Y.2d 250 |
| Parties | , 157 N.E.2d 282 Walter K. WILLMOTT et al., Appellants, v. Rosa GIARRAPUTO, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
John Clark Toaz and Prentice W. Brower, Huntington, for appellants.
Francis X. Giaccone, Lake Ronkonkoma, for respondent.
In October of 1954 defendant Rosa Giarraputo gave the plaintiffs, Mr. and Mrs. Willmott, an option for a period of six months to purchase a piece of property which she owned. The option agreement, although containing various terms of sale, including the description of the property, the price to be paid and the amount of the purchase-money mortgage, provided, with respect to that mortgage, that 'the payment of interest and amortization of principal shall be mutually agreed upon at the time of entering into a more formal contract.' The plaintiffs elected to exercise the option and a formal contract was submitted to them by the defendant's attorney on June 1, 1955. It contained a provision that the mortgage was to be paid in installments and that the entire balance was to become due in 11 years. The plaintiffs declined to sign, it being their claim that an open mortgage had been agreed upon. They consulted a lawyer who modified the contract by inserting a provision which recited that 'Said mortgage (was) to include a privilege of prepayment and a clause permitting the mortgagor to obtain releases of part of the mortgaged premises upon payment of 125% of the mortgage burden as apportioned to the part to be released.'
After some delay nothing turns upon it since time has been found not of the essence the plaintiffs signed the contract as thus changed and returned it to the defendant for her signature. She rejected it and this action to compel specific performance followed.
The defendant pleaded the Statute of Frauds and asserted a counterclaim for damages. Real Property Law, Consol.Laws, c. 50, § 259. The trial court dismissed the counterclaim with which we are not here concerned held the statute no bar and directed specific performance. In reaching this conclusion, the court said in part that the Statute of Frauds was 'satisfied by the signing of the option agreement by defendant and the preparation of the formal contract by her attorney'. (159 N.Y.S.2d 400) The Appellate Division modified the judgment insofar as it mandated specific performance and dismissed the complaint upon the ground that 'The written option was unenforcible because agreement upon terms of the purchase-money mortgage was left to the future'. (170 N.Y.S.2d 608)
Few principles are better settled in the law of contract than the proposition that, 'If a material element of a contemplated contract is left for future negotiations, there is no contract enforcible under the statute of frauds or otherwise.' Ansorge v. Kane, 244 N.Y. 395, 398, 155 N.E. 683, 684; see, also, Keystone Hardware Corp. v. Tague, 246 N.Y. 79, 82, 84, 158 N.E. 27, 28, 53 A.L.R. 610; Pollak v. Dapper, 245 N.Y. 628, 157 N.E. 886, affirming 219 App.Div. 455, 220 N.Y.S. 104. While the price was the 'material element' omitted in the Ansorge case, Pollak v. Dapper presents a situation almost identical with that now before us in that the memorandum explicitly provided that the terms of the purchase-money mortgage were to await the signing of a formal contract. Here, too, the option agreement expressly recites that the 'payment of interest and amortization of principal' provided for in the mortgage were to be 'mutually agreed upon at the time of...
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