Shoag v. Sheftel , 99 Conn. 541 ( 1923 )

The agreement whose specific performance is sought, is contained in the written memorandum made a part of the complaint, and is as follows: —

"Received on land and buildings located on Court Street, number 66, the sum of $100 the sum is $4500. Fifteen hundred dollars first mortgage; $1500 second mortgage to be held by owner for the time of five years. Balance of $1400 by first of December, 1921. R. Shoag. Louis Sheftel. Meyer Cheiken."

We cannot enforce the specific performance of a written memorandum of agreement whose terms are indefinite and defective. "It is incumbent on a plaintiff, seeking specific performance of an agreement, to state its terms and to prove them as stated." Patterson v.Farmington Street Ry. Co., 76 Conn. 628, 641,57 A. 853. The memorandum before us is defective in failing to state one of its necessary essentials — the person to whom the land and buildings were sold. It is said that the name of the purchaser is at the foot of the instrument; three names there appear, but nowhere is it stated that either was the purchaser. So far as appears all of the signers were the sellers. This memorandum must be tested by our general rule: "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." Nichols v. Johnson,10 Conn. 192, 198; Gendelman v. Mongillo, 96 Conn. 541,543, 114 A. 914. In Garber v. Goldstein, 92 Conn. 226,229, 102 A. 605, we said of an agreement of lease: "Exhibit A, which admittedly evidenced the agreement, was a sufficient memorandum to take the case out of the statute of frauds, since it described the store to be leased with reasonable certainty, gave the term of the lease, the rent to be paid, the names of lessor and lessee, and was duly signed by the lessee, the present defendant."Grafton v. Cummings, 99 U.S. 100, 106, in an opinion by Mr. Justice Miller, says: "The statute not only requires that the agreement on which the action is brought, or some memorandum thereof, shall be signed by the party to be charged, but that the agreement or memorandum shall be in writing. In an agreement of sale there can be no contract without both a vendor and a vendee. There can be no purchase without a seller. . . . There can be no bargain without two parties. There can be no valid agreement in writing without these parties are named in such manner that some one whom he can reach is known to the other to be bound also. . . . The name of that vendor, or some designation of him which could be recognized without parol proof extraneous to the instrument, was an essential part of that instrument to its validity." In Williams v. Morris, 95 U.S. 444, 456, the same court in an earlier opinion expressly denied the right to supply the defective term of a writing by parol proof, saying: "Unless the essential terms of the sale can be ascertained from the writing itself, or by reference in it to something else, the writing is not a compliance with the statute; and, if the agreement be thus defective, it cannot be supplied by parol proof, for that would at once introduce all the mischiefs which the statute was intended to prevent." Mentz v. Newwitter, 122 N.Y. 491,25 N.E. 1044; Brown v. Whipple, 58 N. H. 229; Mertz v. Hubbard, 75 Kan. 1, 2, 88 P. 529; Champion v.Plummer, 1 B. P., N. R. (Day's Ed.) 252; 2 Page on Contracts, § 1338.

The name of the purchaser cannot be helped out by the doctrine of identification, since there is no suggestion in the contract of the person to whom the property has been sold. There is no purchaser named, and no description of a purchaser by which an identification could be made. The general rule is that "the memorandum should not only have been signed by the defendant or her authorized agent, and have identified the property to be sold, but should also have contained the name of the other party to the contract, or should have described him with reasonable certainty." Lewis v.Wood, 153 Mass. 321, 322, 26 N.E. 862; Santis v.Cannata, 42 R. I. 118, 123, 105 A. 561; Benjamin on Sales (5th Ed.) 248; 2 Page on Contracts, § 1410. Some of the courts, in applying this doctrine of identification in ascertaining the parties, have identified "him," "you," and "Friend George" in the memorandum.Haskell v. Tukesbury, 92 Me. 551, 43 A. 500; Kinney v. Flynn, 2 R. I. 319; 4 Page on Contracts, § 2188; in these cases, which go to the extreme, there was some person to identify; here there is no one.

The terms of the memorandum are further defectively stated, since the memorandum does not disclose who is to take the first mortgage or for what period of time it is to run, or when the conveyance is to be made.Gendelman v. Mongillo, 96 Conn. 541, 545,114 A. 914; Platt v. Stonington Savings Bank, 46 Conn. 476, 478.

There is no error.

In this opinion the other judges concurred.