Opinion
06-01-1926
KAMENS v. ANDERSON et ux.
Knight & Orlando, of Camden, for the motion. Carl Kisselman, of Camden, opposed.
(Syllabus by the Court.)
Suit by Isaac Kamens against Edward Anderson, Jr., and wife, for specific performance of a contract to sell land. On motion to strike out the bill. Motion denied.
Knight & Orlando, of Camden, for the motion.
Carl Kisselman, of Camden, opposed.
LEAMING, V. C. Defendant, as vendor in a contract for the sale of land, has moved to strike out a vendee's bill for specific performance. The contract is signed by the vendor and is signed by the vendee in the following manner: "Isaac Kamens, Agent."
Our statute of frauds does not require a contract for the sale of real estate to be signed by both parties to the contract. The requirement is that it "shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized." The great weight of authority is to the effect that the phrase, "party to be charged," means the party sued, and that the signature of the other party is not essential. See authorities collected in the American notes to Laythoarp v. Bryant, 2 Bing. N. C. 735, in volume 6 English Ruling Cases, at page 254. Also, Pomeroy's Specific Per. (3d. Ed.) §§ 75 and 170. But the courts with great uniformity also have held that the substantive parts of the contract must appear in the writing; accordingly the name, or a sufficient description of the party seeking enforcement of the contract, is indispensable, because without it no complete contract is shown. See cases collected in 25 R. C. L. at page 656, including Johnson v. Buck, 35 N. J. Law, 338, 10 Am. Rep. 243, and Clement v. Young-McShea Amuse. Co., 70 N. J. Eq. 677, 67 A. 82, 118 Am. St. Rep. 747. The contract here in question meets that requirement, since in the body of the contract it is set forth that it is "between Edward Anderson, Jr. and Agnes I his wife, * * * of the first part, hereinafter called the sellers, and Isaac Kamens, or his nominee, * * * of the second part, hereinafter called the buyer." The bill herein has been filed by Isaac Kamens in his own right and not by a nominee.
In support of the motion herein, stress is made of the circumstance that the contract is signed "Isaac Kamens, Agent," after the signatures of the vendors. This would be fatal to recovery but for the fact that the body of the contract specifically designates the vendee, since a vendee, undisclosed by the written contract, could not be supplied by parol. Schenck v. Spring Lake Beach Imp. Co;, 47 N. J. Eq. 44, 19 A. 881. But in view of the fact that the vendee in this contract is specifically disclosed, and that it is unnecessary for the vendee to sign, the signature, "Isaac Kamens, Agent," may be herein regarded as immaterial. Had this contract been signed by the vendor and by "John Smith," the obligation of the vendor to convey to the vendee specified in the body of the contract would have obtained. In its completed form as-executed the contract of the vendor is for the benefit of the vendee specifically named in the body of the contract. In such circumstances the party for whose benefit the eon-tract is made is entitled to enforce it. Pomeroy's Spec. Per. § 486; Van Dyne v. Vrecland, 11 N. J. Eq. 370; Pruden v. Williams, 26 N. J. Eq. 210; Cubberly v. Cubberly, 3a N. J. Eq. 82, affirmed, 33 N. J. Eq. 591; Joslin v. N. J. Car Spring Co., 36 N. J. law, 141.
So far as mutuality of obligation of performance is concerned that requirement was fully met when the vendee specified inthe body of the contract filed his bill herein. Cohen v. Pool, 84 N. J. Eq. 77, 94 A. 37, affirmed, 84 N. J. Eq. 189, 94 A. 37. Prior cases in this state to that effect are collected in Pomeroy's Spec. Per. (3d Ed.) note (a) to section 170.
The motion to strike out the bill must be denied.