Gerardo v. Page

13 Conn. Supp. 78, 1944 Conn. Super. LEXIS 71
CourtPennsylvania Court of Common Pleas
DecidedJuly 18, 1944
DocketFile No. 7948
StatusPublished

This text of 13 Conn. Supp. 78 (Gerardo v. Page) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gerardo v. Page, 13 Conn. Supp. 78, 1944 Conn. Super. LEXIS 71 (Pa. Super. Ct. 1944).

Opinion

FITZGERALD J.

Plaintiff in this action to which a demurrer has been interposed seeks a decree of specific performance and damages as a result of defendant’s failure to comply with the terms of a written agreement respecting the sale and purchase of land alleged to have been entered into between the parties. The writing upon which plaintiff bases her action is referred to in the complaint and a copy annexed thereto styled Exhibit “A”, reading:

“August 24, 1943
“In consideration of the sum of $625 I, Mary D. Gerardo [plaintiff], agree to sell to Mr. Walter Page [defendant] lot No. 3 on Highland Avenue for the payment of $300 cash down and $40 per month on balance $325. Size of lot 46.7 x 130 feet.
[signed] “Mary D. Gerardo
“Walter Page”

Defendant’s demurrer is composed of one paragraph with three subdivisions which may be reduced to a frontal attack on two concise grounds; 1(a), (b) as one: the alleged agreement annexed to and made a part of the complaint does not contain a sufficient description of the land involved from the standpoint of identity as required by the Statute of Frauds, to wit, section 5982 of the General Statutes, Revision of 1930; 1(c) as two: the alleged agreement discloses no consideration.

The first ground requires a close analysis and is to be tested by three rules of general application: (a) “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 vs. Johnson, 10 Conn. 192, 198. See, also, Shelinsky vs. Foster, 87 Conn. 90, 96; Gendelman vs. Mongillo, 96 id. 541, 543; Shoag vs. Sheftel, 99 id. 541, 543. (b) “The description is sufficiently definite whenever it is reasonably certain from the contract itself, or can be made certain through reference to record, contract, map [80]*80or fact, by resort to extraneous evidence thereof, whether oral or written.” McMahon vs. Plumb, 88 Conn. 547, 552. See, also, Fabicatore vs. Negyesi, 105 Conn. 412, 414. (c) “Descriptions which are clearly within the statute are: your land; a piece of land; a piece of land in M; and a given number of acres. These cannot be identified without resort to the negotiations of sale, in order to complete the terms, and this cannot be done.” Gendelman vs. Mongillo, supra, p. 550. See, also, Frabicatore vs. Negyesi, supra, p. 414.

The statement of any rule is usually a matter of quotation requiring little or nothing in the way of intellectual process. The real difficulty is in applying the correct rule or rules to a concrete set of facts in the determination of a specific problem. The initial question, therefore, is whether the description “lot No. 3 on Highland Avenue” is a sufficient description under the foregoing rules de identification in the memorandum upon which the case at bar is based. Obviously the best approach is by reference to cases having a common ground. This method gives animation to rules (a), (b) and (c) quoted in the preceding paragraph. The cases now to be considered require a careful reading beyond the limits of the brief references thereto.

The following descriptions have been held sufficient: “Philo Baldwin’s right in Donald Baldwin’s estate” (Nichols vs. Johnson, 10 Conn. 192); “to purchase of P. H. Hodges his place in Stratford, Conn., containing fifteen acres, more or less” (Hodges vs. Kowing, 58 Conn. 12); “Lot No. 1 on map of lots at Walnut Beach and filed at the Town Clerk’s office at Milford, Connecticut” (McMahon vs. Plumb, 88 Conn. 547, 553), but proved fatal at the trial when it appeared that no such map was in existence and the vendor owned several lots at Walnut Beach; “38-40 Emmet Avenue three tenement house”, the memorandum being dated at Derby, Connecticut (Kilday vs. Schancupp, 91 Conn. 29); “6 Washington Place” (Gendelman vs. Mongillo, 96 Conn. 541).

In the last cited case it was said of the earlier Connecticut cases to which reference is made, and to comparable cases of other jurisdictions (p. 550) : “The premises referred to were in each of these instances sufficiently definite to identify the land by its own terms, or by reference to external standards in existence at the time of the making of the memorandum.”

[81]*81The following descriptions have been held insufficient: “A tract of land, with all the buildings thereon, adjoining the New Haven & Derby R. R. in the town of Orange, containing some twenty acres more or less” (Andrews vs. Babcock, 63 Conn. 109); “I sold all my property one house and two lots 100 x 100 for the sum of six thousand dollars. . .to Mr. Angelo Frabicatore....” (Frabicatore vs. Negyesi, 105 Conn. 412).

Defendant contends that the Frabicatore case is decisive of the first ground of his demurrer and that it should be sustained under that decision. Plaintiff, on the other hand, contends that the Gendelman case controls, with particular reference to pages 546-551, and is authority for the overruling of the demurrer. Both of these cases are actions for specific performance brought by vendees and the sufficiency of the description of the land involved as contained in the respective memoranda was tested on demurrer to the complaints. The fact that in the case at bar the vendor is party plaintiff is of no particular importance (Andrews vs. Babcock, 63 Conn. 109, 116), although in most of the cases to be found the vendee is the moving party. The memoranda in the two cited cases correspond to that in the case at bar in that it does not appear where the agreement was executed; the Frabicatore and GendeÍman memoranda correspond to each other in that they were signed only by the vendee defendants and differ from that in the case at bar which purports to be signed by both the vendor and vendee; the Frabicatore memorandum makes no reference to or attempts to identify the property involved other than “all my property one house and two lots 100 x 100”, whereas the Gendelman memorandum seeks to identify by the designation “6 Washington Place”; as to the last aspect the Gendelman memorandum corresponds far more closely to that in the case at bar.

Had the memorandum in the case at bar referred to “No. 3 Highland Avenue” rather than to “lot No. 3 on Highland Avenue”, the Gendelman case (p. 547) would then be directly in point. Or had the memorandum referred to “Lot No. 3 in map of lots relating to Highland Avenue on file at the Town Clerk’s office at Torrington”, the complaint would withstand the demurrer on the first ground under the McMahon case, supra (88 Conn. 547, 553). In the last analysis the question comes down to whether the description “Lot No. 3 on Highland Avenue” can be identified by “its own terms, or by refer[82]*82ence to external standards in existence at the time of the making of the memorandum.” Gendelman case, supra, p. 550.

Since the description “No. 3 Highland Avenue” would suffice under the Gendelman

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Related

Shelinsky v. Foster
87 A. 25 (Supreme Court of Connecticut, 1913)
McMahon v. Plumb
92 A. 113 (Supreme Court of Connecticut, 1914)
Andrew v. Babcock
26 A. 715 (Supreme Court of Connecticut, 1893)
Frabicatore v. Negyesi
135 A. 441 (Supreme Court of Connecticut, 1926)
Finlay v. Swirsky
131 A. 420 (Supreme Court of Connecticut, 1925)
Gendelman v. Mongillo
114 A. 914 (Supreme Court of Connecticut, 1921)
Kilday v. Schancupp
98 A. 335 (Supreme Court of Connecticut, 1916)
Bloech v. Hyland Homes Co.
247 P. 761 (Oregon Supreme Court, 1926)
Nichols v. Johnson
10 Conn. 192 (Supreme Court of Connecticut, 1834)
Hodges v. Kowing
7 L.R.A. 87 (Supreme Court of Connecticut, 1889)
Robeson v. Hornbaker
3 N.J. Eq. 60 (New Jersey Court of Chancery, 1834)
Price v. McKay
53 N.J. Eq. 588 (New Jersey Court of Chancery, 1895)

Cite This Page — Counsel Stack

Bluebook (online)
13 Conn. Supp. 78, 1944 Conn. Super. LEXIS 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerardo-v-page-pactcompl-1944.