Pelletreau v. Brennan

113 A.D. 806, 99 N.Y.S. 955, 1906 N.Y. App. Div. LEXIS 1550

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1906
• Status: Published

Opinion

Gaynor, J.:

The judgment has to be reversed. The findings of fact and conelusions of law are that the contract expresses no consideration, and is so vague and indefinite that a judgment of specific performance cannot be given upon it. The contract contains every essential, i. e., it gives the names of the seller and the buyer, expresses the consideration and describes the land to be conveyed by the defendants. The description, “Clinton and Joralemon street,” suffices, for it enables the land to be identified and fully described by evidence dehors (Waring v. Ayres, 40 N. Y. 357 ; Miller v. Tuck, 95 App. Div. 134 ; Levin v. Dietz, 106 id. 208) ; and such evidence was given. As the parties were dealing in the city of Flew York, the legal inference is that the contract refers to land there. That the land to he conveyed by the plaintiff as part consideration is not identified by the contract does not matter; it is only the seller who can raise the question of no written contract (Torres v. Thompson, 29 Misc. Rep. 526) ; and the plaintiff tendered performance. That the contract provides for the execution of a more formal contract "does not detract from it; it is enforcible (Pratt v. Hudson River R. R. Co., 21 N. Y. 305 ; Sanders v. Pottlitzer Bros. Fruit Co., 144 id. 209). The writing not being sealed, the action can be maintained by and against, ¡the-principals, for whom their agents signed, although the latter-signed--by- ¡their own names only (Briggs v. Partridge,. 64 N. Y. 357).

The jndgment. should be reversed.

Jenks and Hooker, JJ., concurred ; Rich and Miller, JJ., dissented

Jndgment reversed and new trial granted, costs to abide the event,'. ... ¡:. „ ; i- - ., ¡,