Opinion
03-06-1907
TITUS v. TAYLOR.
William S. Darnell, for the motion. J. Fithian Tatem, opposed.
Suit by Clara R. Titus against Joseph Taylor for specific performance. Motion to dismiss bill allowed.
William S. Darnell, for the motion. J. Fithian Tatem, opposed.
LEAMING, V. C. The bill is filed by a vendee to compel specific performance of a contract for the sale of land. The contract was made in March, 1905, by complainant with William H. Bright, as agent of defendant. The bill refers to Bright as the "duly authorized" agent of defendant, and refers to a letter from defendant to Bright as extending to the latter authority to sell the land in question for defendant.
It appears unnecessary to pass upon the question as to whether the averments of the bill are sufficient to constitute Bright an agent with sufficient authority to make, in the name of his principal, a contract for the sale of the land, or whether, under the allegations of the bill, Bright must be treated as a mere broker, authorized only to find a purchaser and without authority to contract for his principal, as in Morris v. Ruddy, 20 N. J. Eq. 236, 238; for it is manifest that the bill does not overcome the requirements of the statute of frauds, in that it fails to disclose any written contract between complainantand defendant or his agent for the sale of the land in question.
The only part performance of the contract referred to by the bill consists of the payment by complainant to the agent of defendant of the sum of $25 to bind the bargain. It has long been the settled law of this state that the only cases in which a part performance of a parol contract for the sale of land will remove the contract from the operation of the statute of frauds is where there has been a part performance, upon the part of the party seeking specific performance, of such a nature that the interposition of the statute of frauds as a defense would be operative to promote rather than to prevent fraud. The payment of a portion of the contract price is not, in itself, sufficient part performance to take the case out of the statute; as money, so paid, can be recovered back by action at law with interest, by way of damages for its detention. Brown v. Brown, 33 N. J. Eq. 650, 660; Cole v. Potts, 10 N. J. Eq. 67, 69.
As the bill fails to disclose a written contract between complainant and the agent of defendant or a sufficient part performance of a parol contract to afford equitable jurisdiction, the motion to dismiss the bill must be allowed, with costs.