Opinion
12-07-1903
CLAPHAN v. BARBER et al.
Norman Grey, for complainant Watkins & Avis, for defendants.
Bill by Arthur W. Claphan against Mignonette F. Barber and another for the specific performance of an alleged contract for the sale and purchase of a house. Decree for complainant.
Norman Grey, for complainant Watkins & Avis, for defendants.
REED, V. C. On March 14, 1903, Mignonette F. Barber signed the following paper: "Woodbury, 3/14/'03. Received of Arthur W. Claphan fifty dollars in part payment in the purchase of house No. 35 Center St., Woodbury, N. J. $50.00. Mignouette F. Barber." Mignonette F. Barber declines to make a conveyance of the said property, and now invokes the statute of frauds as a defense to this suit. It is said that the property is insufficiently described. I am of the opinion that a number of a house on a street is a very good description of a house so designated, with its curtilage. It is true that no evidence was offered to show the existence of such a house upon Center street Woodbury, N. J., or the dimensions of its curtilage. But the bill sets out a description of a property known as No. 35 Center street, of which a more particular description is attached to the bill. The defendants admit her ownership of the property described, andadmit that one Allen, her agent, advised her that he had obtained a purchaser for this property, in the person of Arthur W. Claphan, and that she signed the receipt, and received a check for $50 from said Claphan. The identity of the property, therefore, which is the subject-matter of the receipt, is sufficiently established.
It is, again, insisted that the terms of payment are not proved with sufficient certainty by parol. It is not denied that the same was to be $3,500, but the query is whether it was to be all in cash, or $1,000 in cash and $2,500 upon a mortgage to be given to Mrs. Barber. I think it sufficiently appears that it was to be in cash, and that the error in stating the contract in the original bill arose from a misunderstanding of what was written in the statement given by Mr. Claphan to his solicitor by way of instructing the latter in bringing the suit. The allusion to a mortgage contained in the statement was respecting one that Mr. Allen was to negotiate for the purpose of raising the cash to pay Mrs. Barber. I think, also, that the time when the money was to be paid is sufficiently ascertained, and that it was to be paid when Mrs. Barber could terminate the tenancy of the person then occupying the house, and that two months was stated as the time this would require. This period of time has now expired, and I see no reason why a deed should not be delivered upon the payment of $3,500 in cash. The testimony of Mrs. Barber goes only to the points that she did not understand what she was signing, and that Mr. Claphan abandoned the contract. Neither of these points is proved. It is also said that the parol contract was for the conveyance of other articles than the house itself. There is no ground laid for reformation, nor can the defendant complain that she is to specifically perform a contract less onerous than the one she intended to sign.
I will advise a decree for the complainant.