Friedman v. Ender

FOOTE, J.

The contention of the defendant is that the oral agreement is void under the statute of frauds, both because it was not re *463 duced to writing and was not to be performed within one year, or that the written memorandum in Friedman’s account book should be treated as a sufficient writing, and by it he did not agree to pay the $31.60 West Side sewer assessment, or any interest on the purchase money, or any taxes or assessments accruing while he was in possession before he received his deed, and that on this basis he has fully paid the $750 purchase price in the amounts paid directly to the plaintiffs and to satisfy the existing liens at the time he received his deed and procured his mortgage loan in 1904. Defendant also contends that the full-covenant warranty deed is conclusive that the consideration was. limited to $750, that it was fully paid, and that plaintiffs were to convey free of all liens or incumbrances. In my opinion none of these contentions, except the first, are well founded.

It is held by some authorities that a purchaser taking possession of the land purchased under an oral contract is such a part performance of the contract as takes it out of the statute of frauds; but the better opinion, I think, is that mere possession is not sufficient, unless followed by making improvements upon the property, by reason of which the purchaser would be prejudiced if the contract were not carried out. Assuming, then, that the payment of $5' toward the purchase price and taking possession of the property do not make the oral contract valid and enforceable, and that the written memorandum is not sufficient for that purpose, still it unquestionably became a valid contract on the 18th of October, 1904, when it was so far performed as that title to the property was transferred by plaintiffs to the defendant by the deed made on that day. It is not claimed by the defendant that any new or different contract was made, and it stands conceded that the deed was made in part fulfillment of the oral contract of 1899. That oral contract was ratified and validated by the deed. Dodge v. Wellman, 1 Abb. Dec. 512; Bidon v. James, 3 N. Y. St. Rep. 734; Johnson v. Hathorn, *42*42 N. Y. 126 ; Beardsley v. Duntley, 69 N. Y. 577 ; Thomas v. Dickinson, 12 N. Y. 364 ; Brown v. Farmers’ Loan & Trust Co., 117 N. Y. 266 , 22 N. E. 952 .

We must then determine precisely what that oral contract was. The memoranda in Friedman’s account book made at the time and the deed made five years later are undoubtedly evidence favorable to the defendant’s claim that the total purchase price was $750, and that the defendant was not to pay interest upon the purchase money or to pay taxes accruing before he received his deed. But they are not conclusive. The memorandum is the declaration of John Friedman alone, and not evidence against his wife, Caroline. Moreover, it was not intended as a complete statement of the contract. It was made by a man ignorant of the English language and of business of that character, without the aid of counsel, or any help or advice. While it is receivable in evidence against him, it is not conclusive even upon him, and does not stand in the way of showing by other evidence what the actual transaction was. Nor do I think it inconsistent with his present claim. He bought the .property for $750, and he agreed to sell it for what it cost him; hence the use of that sum as the selling price. But he had paid out some money for sewer taxes, and that *464 was to be refunded to him. He did not consider that as a part of the selling price of the property, but an incidental expense of carrying it.

On the day the oral contract was made John Friedman and the defendant went together to call on Mr. Brayer, the holder of the mortgage, to arrange with him to accept' the future payments upon his mortgage from the defendant Ender, and in his presence they both stated the terms of the sale. Mr. Brayer has a distinct recollection of what was said to him, and is an intelligent and entirely disinterested witness. He fully corroborates the testimony of both the plaintiffs to the effect .that Ender was to pay the sewer assessment in question, interest on the unpaid purchase price at the rate of 5 per cent, per annum, and was to get $750 net for the property over and above taxes and assessments.

The testimony of the defendant' Ender is wholly uncorroborated. It is also very improbable. He does not deny that the Friedman preposition was to sell the property for what it had cost them; but he says nothing was said about sewer taxes, and nothing about’ paying interest upon the unpaid purchase price. His position is that, although he was to have possession and use of the property, and no definite time was fixed for completing the payment of the purchase price, and that he expected to pay it in very small weekly payments, still he was to pay no interest upon the money, nor any of the current taxes. It is safe to say that if the Friedmans were in their right minds, they would not make such a one-sided contract as this, and I am satisfied from the evidence that they did not.

Assuming, then, that the contract was as claimed by the plaintiff, what was the legal effect of the full covenant warranty deed? Did it in any way alter the contract as made ? I think not'. It is clear that it was not so intended; for it was signed by the Friedmans at defendant’s request, for the express purpose of enabling him to carry out the contract as originally made, by means of the money which he could borrow on the property after receiving the deed. If he had any secret intention to use it as a means of defrauding the plaintiffs of the balance due them, he certainly did not disclose such intention to the Friedmans. This deed was made either in part performance of the original oral contract, or it represents an entirely new contract, or rather superseded the prior contract, and in it is contained the entire contract' then remaining. If the latter, why did Ender proceed to pay off the mortgage and the back taxes? The deed contained a covenant that' the property was free of incumbrance,' and if these incumbrances were not for him to pay there was an immediate breach of the covenant of warranty. On this occasion, as before, the Friedmans had no counsel. They relied upon what was told them by Ender’s attorney, and he testifies that he represented to them that it was necessary for them to sign this deed to put Ender in a position t'o complete his purchase by paying off the Brayer mortgage and getting the money with which to pay them the balance of the purchase price. This is not denied by Ender, but is a conceded fact in the case. The deed must', therefore, be construed in the light of the purpose for which it was given, and • so construed, it in no way altered the original contract.

But the consideration stated in a deed and the acknowledgment of its *465 receipt is never conclusive, even as between the parties, and the. true consideration, and the amount, if any, actually paid, may always be shown. The deed itself is merely presumptive evidence, and the presumption may be rebutted by other evidence. Whitbeck v. Whitbeck, 9 Cow. 266 , 18 Am. Dec. 503 ; McKinster v. Babcock, 26 N. Y. 378 .

My conclusion is that as against the defendant Ender plaintiffs are entitled to a vendors’ lien for the balance of the purchase price due them, and to the usual judgment for the enforcement thereof, with costs against the defendant Ender.

Findings may be prepared accordingly, which will be settled on two days’ notice.