EMERY, V. C.

Suit by Edgar T. Wheaton against John Collins for specific performance of a contract to purchase land. Decree for complainant.

C. English, of Newark (McCarter & English, of Newark, on the brief), for complainant.

F. E. Bradner, of Newark, for defendant.

EMERY, V. C. This bill is filed by the vendor for the specific performance of an alleged agreement to purchase lands of the vendor located in Cranford township, Union county, and the defenses are (1) that there was no completed agreement of purchase made in writing, and the statute of frauds is pleaded; and (2) that the contract was abandoned. The complainant, to make out the written agreement, relies on letters signed by defendant, and also sets up possession taken by defendant under the agreement, in part performance of the contract. As to the written agreement, the case depends upon the construction and application of defendant's letters.

The property to be conveyed, and with reference to which the negotiations admitted in the answer took place, are sufficiently identified by the following letters, signed by defendant, viz.: Exhibit C 2, undated, but written in August, 1910, referring to "your [complainant's] 2 houses in Cranford," and inquiring size of ground; Exhibit C 6, dated August 20th, stating, "My son is moving in;" letter of September 22, 1910, referring to "lease of small house"; letter of January 17, 1911 (inclosing deed), and stating, "I send 1 more deed off little house 2000 lot 1000 large house 3000, large house and lot together in one deed, small house by itself," and further inquiring, "No. [number] of house this is for little house, the other was for lot and house where my son is;" the letter of January 17, 1911, in which defendant writes, "I want all I agreed for lot and 2 houses 0000," and the further postscript, "Bear in mind I want all." So far as relates to the property to be conveyed, there is from these letters alone, without reference to any extrinsic proof whatever, evidence of a contract to purchase complainant's lot and two houses in Cranford, with their ground; one of the houses being a large house occupied by defendant's son, and the other being a small house. A deed or will, conveying or devising such by description alone, would, I think, be sufficient; the description being applied by proof, which has been made in the case, that the complainant owned at Cranford only the one lot and these two houses.

That the further elements of a complete contract, the parties and the price and terms of payment, are made out by these and other letters, is clear. The letter of August 30, 1910, Exhibit C 4, says, "If I can sell or trade it [my property], I will buy yours." Letter of August 20th, "I can pay you your money." Letter of September 22, 1910, "We agreed to this—you were to give warrantee deed &c. and sign insurance and lease of small house—the property is yours until paid." Letter of September 26th, "I have your letter—that is our understanding. If you can wait I can have your money." Further reference on the matter of parties to the contract is unnecessary, as the admissions of the answer in relation to the negotiations above referred to include this point also. The terms also sufficiently appear by defendant's letters of January 17. 1911, "I agreed for lot and 2 houses $6000— was to have bill April 1, 1911, & if I paid all cash you would discount it at 5 p. c," and the subsequent letter of February 4, 1911, referring in terms to complainant's letter of August 19, 1900, as to discount of 5 per cent. for cash from prices fixed. The letter of September 22, 1910, further states as to terms that complainant was to give warranty deed and pay taxes of 1910 and assign insurance.

Defendant's letters sufficiently make out the original contract of purchase, without regard to the question of the effect of the defendant's taking possession of the larger house pending the negotiations. Defendant's son took possession with his family in September, 1910, and the sum of $60 was fixed as the compensation for his occupation until April 1, 1911, when the purchase was to be completed. This sum was fixed at the time of coming to an agreement, in an interview between the parties about September 14th, and was paid on September 16th, when complainant gave a receipt for it as rent for the house to April 1st, "said amount to he advance payment and additional to amount named in contract for purchase of said property." This house was occupied by defendant's son independently of the smaller house, and the dispute between the parties in relation to this occupation and payment is whether the possession of this one house was taken under the agreement of purchase of all the property, or was merely an independent transaction of a lease of the larger house to April 1, 1911.

On the evidence my conclusion is that the occupation was a possession taken by the defendant under an agreement to purchase all the property described in the bill, and that it was induced by and referable to such purchase: The $60 was paid and the bargain for the entire property was closed upon complainant's informing defendant by letter of September 14th (Exhibit C 5) that he had two applications to rent the larger house, but would stand by his offer of sale, if defendant would send the $60 as agreed and close the deal. It is also proved by the occupants of the smaller house that defendant, in complainant's presence, told them he had bought the whole property and would be their landlord, and that the sign for sale, which was on the large house, was taken down by defendant at complainant's direction, and soon after defendant's son moved into the larger house. A general payment on account of $600 was also made by defendant in October, 1910.

The terms of the original contract to purchase the entire property being made out, the next question is whether this contract for the entire purchase was subsequently abandoned or waived, and a contract for the separate purchase of the larger house alonesubstituted, or the entire contract abandoned. There is evidence by the letters passing between the parties subsequent to the letter of January 17, 1911, in which defendant insisted on his agreement as covering all the property, that defendant desired two separate deeds for the properties, one for the smaller house and one for the larger house and lot together, and that complainant was on his part willing to carry out the entire sale by two separate deeds, but as one transaction. These propositions fell through, and defendant finally failed to comply with the agreement, although complainant was ready and tendered performance on April 1st, and on or about that date left with a depositary at Cranford two deeds for delivery on payment.

Further letters from complainant to defendant were written after this date, urging defendant to carry out the sale, and proposing conditions for conveying the two properties separately, and on April 14, 1911, complainant wrote defendant that if he wished the deed for the house his son occupied, with 371/2 by 100 feet of land, and the adjoining lot, 75 by 100 feet, on Central avenue, for $4,000, less the $600 paid, complainant would make this transfer, and requesting an immediate reply to this proposition. Complainant further stated that he had received a proposition from other parties for this property, and "after May 1st the price on the large house will be advanced to $3,500, and on the lot to $1,250, to meet the cost of street improvement." Defendant made no reply to this proposition; but it is set up in the answer, and claimed at the hearing, that he considered this as a final abandonment of the entire contract, and was justified in so doing. An abandonment or waiver of a contract can only take place by the consent of both parties, "and requires as clear evidence of the waiver as of the existence of the contract." Fry, Spec. Perf. (4th Ed.) 1026, citing Lord St. Leonard's Carolan v. Brabazon, 3 Jones & La T. 200, 209.

This letter was merely a proposed modification of the original contract for the entire property, and, if accepted by defendant, would have modified the contract, but, not being accepted or acted on by either party, leaves both complainant and defendant to their equitable rights under the original contract.

Complainant is entitled to a decree.