Opinion
October 3, 1947.
Laxer, Shapiro Lauter for defendant.
Julius Elkin for plaintiff.
This action is by the purchaser for specific performance of a contract of sale of a motor car. The defendant moves under rule 112 of the Rules of Civil Practice and section 476 of the Civil Practice Act, to dismiss the complaint for insufficiency. Defendant contends that the facts alleged do not make out a case for specific performance. Section 149 Pers. Prop. of the Personal Property Law (Uniform Sales Act, § 68), provides that a court of equity may, if it thinks fit, direct that the contract shall be performed specifically, where the seller has broken a contract to deliver specific or ascertained goods. In the contract alleged in the complaint the goods agreed to be sold are described as follows: "one Buick motor car, Model 51, or any model selected without loss of date" — delivery as soon as possible — "Color Select, Trim ___, Wheel Equipment ___" — a description which shows clearly that the subject matter of the sale was not a specific car identified and agreed upon at the time the contract to sell was made, but a sale by description of an unascertained car. The motion to dismiss is granted.