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were refused, and the defendant demanded of the plaintiff the return of the $900 paid as commissions upon the first payment of $7,500, and this was refused. At the time of the cancellation of the contract upon April 9th, $7,500 was returned by defendant to the National Garage Association. The material parts of the contract which it is necessary to consider are as follows:

“Now, therefore, it is agreed :

“1. The vendor agrees to and hereby does sell and set over unto the vendee all of the capital stock of the said Wellsmore Garage, Incorporated, under the terms and conditions hereinafter set forth.

“2. The vendee hereby agrees to pay for said stock twenty-five thousand dollars, payable as follows:

"Seventy-five hundred dollars in cash, upon the execution of this agreement, receipt whereof is hereby acknowledged.

"Eighty-five hundred dollars-forty-two hundred fifty dollars upon the occupancy of the vendee of such garage building, and forty-two hundred fifty dollars upon the substantial completion of said building. In the event that the building is substantially completed prior to March 15, 1918, then the sum of eighty-five hundred dollars shall be paid upon the occupancy of the said garage by the Wellsmore Garage, Incorporated, or the vendee hereunder.

"One note for two thousand dollars, with interest at 6 per cent., payable six months after the said garage is substantially completed and delivered to the said Wellsmore Garage, Incorporated;

“One note for two thousand dollars, with interest at 6 per cent., payable twelve months after the said garage has been substantially completed and delivered to the said Wellsmore Garage, Incorporated ;

“One note for twenty-five hundred dollars, with interest at 6 per cent., payable two years after the said garage has been substantially completed and delivered to the Wellsmore Garage, Incorporated; and

“One note for twenty-five hundred dollars, with interest at 6 per cent., pay. able three years after the said garage has been substantially completed and delivered to the Wellsmore Garage, Incorporated.

"3. It is understood and agreed that, until the completion of said building and the payments to be made hereunder, the said stock of the Wellžmore Garage, Incorporated, sold and set over, as provided in paragraph 1 herein, shall be assigned in blank by the vendee and held by the vendor as collateral security for the payment of the aforesaid sums, to be returned to the vendee upon the payment of the last note required to be paid hereunder.

“4. It is understood and agreed that substantial completion of said building on or before March 15, 1918, is of the essence of this agreement.

"In the event that said building is not substantially completed by the 15th day of March, 1918, but is sufficiently completed for partial occupancy, then and in that event the vendor agrees that the Wellsmore Garage, Incorporated, may enter into possession, and thereupon shall receive a reduction in rent from the 15th day of March, 1918, to the 15th day of July, 1918, of six hundred eighty-seven and 50/100 dollars per month; but from the 15th day of July, 1918, during the life of said lease, full rent shall be paid,

5. It is understood and agreed that, in the event that the said garage building is not substantially completed by the 10th day of July, 1918, then, at the option of the vendee, this contract may be canceled and all the moneys paid hereunder to the vendor shall be repaid, and the stock transferred to the vendee shall be and become the property of the vendor. Written notice of the exercise of said option must be sent by registered mail on the said 10th day of July, 1918.”

On March 15th the building was not substantially completed. The National Garage Company claimed its right to cancel the contract at that time, which right was recognized by the defendant. The building and garage apparently was not being constructed by the defendant, but by a third party, so that there is no question as to

1

(182 N.Y.S.) any fault on the defendant's part in not having the building substantially completed on March 15th.

The claim of the plaintiff is that this contract gave the right of cancellation only upon July 10th, in default of substantial completion of the garage at that time, and that the cancellation upon April 9th was a voluntary act on the part of the defendant, which cannot defeat the plaintiff's right to commissions.

The contention of the defendant is that under this contract the substantial completion of this building upon March 15th was made of the essence of the contract, and, because of the fact that the garage was not substantially completed upon March 15th, the defendant's act in canceling the contract was not a voluntary act, but was only an acquiescence in the legal demand of the National Garage Company, and that, under the plaintiff's contract to receive the 12 per cent. commission only upon the payments as made, the plaintiff has established no cause of action.

[1-3] The main question to be determined is the construction of this contract. The provision is that the building shall be substantially completeď upon March 15, 1918, and that is declared to be of the essence of this agreement. If this provision stood alone in the contract, there is no question that the failure of substantial completion upon March 15th would justify the National Garage Company in cancelling the contract. While there is no proof in the case to the effect that the building was not substantially completed upon that date, that fact is assumed throughout the case, and neither the plaintiff nor the defendant can now question it. But the whole contract must be read together. The subsequent provisions of the contract, providing for the entering into possession and the reduction of rent if the building be not substantially completed by the 15th day of March, and the specific provision that, if the building be not substantially completed upon the 10th day of July, 1918, then, at the option of the vendee, the contract may be canceled, and all moneys paid thereon to be repaid, and the stock transferred to the vendee to become the property of the vendor, and the specific provision requiring written notice of the option to cancel the contract to be sent by registered mail on said 10th day of July, 1918, to my mind largely impairs the force of the provision earlier in the contract that the substantial completion upon March 15th is of the essence of the contract. There is no provision that the contract may be canceled if the building be not substantially completed upon that date, while the later provision specifies the right of cancellation if it be not substantially completed on July 10th. Meantime the National Garage Company could occupy the building, if it were in shape to be occupied, at a reduced rent. These alternative provisions would seem to nullify the earlier provision in the contract that the completion upon March 15th was of the essence of the contract, and the cancellation of the lease by agreement with the defendant upon April 9th was not a cancellation authorized by the contract. Perchance by July 10th, when the right of cancellation is specifically given, the building might have been substantially completed, so that the National

182 N.Y.S.-41

Garage Company would have been without the right to cancel the contract. There is no proof in the case as to the condition of the building at the time of the cancellation. It might perhaps have been shown by the defendant that the building was in such a state of completion that it would have been impossible to have substantially completed the same by July 10th. In that case, in my judgment, the defendant would have been authorized to have consented to the cancellation of the contract at any time before July 10th, and this would not have amounted to a voluntary cancellation. Without such proof in the case, however, no justification is shown to the defendant to consent to the cancellation of this contract upon April 9th, and the giving of such consent must be deemed to have been a voluntary act, which would not deprive the plaintiff of his right to commissions.

The fact that the defendant had other negotiations pending early in April for the transfer of the property to another vendee may or may not give color to the consent given to the cancellation of this contract upon April 9th. It is for the defendant to show the legal right of the National Garage Company to the cancellation at that time before it can defeat the plaintiff's right to the commissions stipulated, and no such proof is given.

It is unnecessary to cite authorities to the proposition that if a vendor voluntarily releases a vendee from his contract, which might have been enforced, the broker of the vendor may recover his commissions. To defend against the broker's claim, the vendor must at least show that his consent to the cancellation of the contract was a consent to a legal right in the vendee. Colvin v. Post Mortgage & Land Co., 225 N. Y. 510, 122 N. E. 454; Duclos v. Cunningham, 102 N. Y. 678, 6 N. E. 790; Condict v. Cowdrey, 139 N. Y. 280, 34 N. E. 781.

Under this construction of the contract, it becomes immaterial to consider the legal effect of the claimed alteration in the brokerage contract made either before or after the consummation of the contract between the defendant and the National Garage Company.

Upon the facts as shown, the plaintiff is entitled to his commission, and this, of necessity, is a complete answer to the defendant's counterclaim.

The determination should therefore be affirmed, with costs. All concur.

(182 N.Y.S.) (192 App. Div. 54)

TOBIAS v. LYNCH. (Supreme Court, Appellate Division, Second Department. May 21, 1920.) 1. Frauds, statute of Ow107 (2)-Land contract must contain names of both

vendor and purchaser.

Under the statute of frauds, land contract, to be specifically enforced,

must contain the names of both vendor and purchaser. 2. Frauds, statute of Cm 107(1)-Land contract held not insufficient, as

failing to disclose which party was vendor.

Land contract, containing names of both vendor and purchaser, was not insufficient under the statute of frauds, because of failure of contract to disclose on its face which party was vendor and which was purchaser,

since it can be established by parol evidence. 3. Evidence an448-Parol evidence admissible to establish meaning of writ

ten contract.

No terms can be added to a contract by parol evidence; but, when there is a question of the application of the writing, the facts and circumstances within the knowledge of the parties when the writing was made

may be disclosed, not to vary, but to establish, its meaning. 4. Frauds, statute of Ow113 (3)—Memorandum of land contract, not fixing

time for closing of deal, held sufficient.

Memorandum of land contract, not fixing the time for closing of the deal, was not insufficient under the statute of frauds, notwithstanding stipulation of parties as to the time thereof, since a parol stipulation could not vary the terms of the contract which in absence of provision in regard

to closing, was to be closed within a reasonable time. 5. Frauds, statute of Om 113(1)-Memorandum must include all terms of con

tract.

In order to satisfy the statute of frauds, the note or memorandum must

include all the terms of the contract which the parties made. 6. Vendor and purchaser Onw5_Contract to be closed within reasonable time,

in absence of provision relating thereto.

In the absence of a provision in land contract as to time for closing of deal, the law provides that the contract shall be closed within a reasonable time.

Appeal from Kings County Court.

Action by Edward Tobias against Annie E. Lynch. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before JENKS, P. J., and MILLS, RICH, PUTNAM, and BLACKMAR, JJ.

J. Nathan Helfat, of New York City, for appellant.
Herman S. Bachrach, of Brooklyn, for respondent.

BLACKMAR, J. The judgment might well be affirmed without comment, except that so many cases are coming before us in which vendors are resisting specific performance of their contracts for the sale of land on the defense of the statute of frauds that we think a consideration of the points raised in this case may not be out of place.

The contract is as follows:

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

"May 3, 1919. "Agreement between Mrs. Annie E. Lynch and Edward Tobias for sale of house No. 1142 E. 13th St., Bklyn sale price $4,250 subject to 1st of $3,000 and lease to Sam J. Heines expiring May 1st, 1920. Deposit 50.00.

"Annie E. Lynch. Edw. Tobias."

[1] The memorandum contains the names of both parties to the contract, but does not disclose which is seller and which purchaser, and for this reason the appellant claims that the statute of frauds is not satisfied. No doubt both names must appear.

The reason is clearly stated by Chief Justice Mansfield in Champion v. Plummer, 1 Bos. & P. (N. R.) 252. He said:

"How can that be said to be a contract, or memorandum of a contract, which does not state who are the contracting parties? By this note, it does not at all appear to whom the goods were sold. It would prove a sale to any other person as well as to the plaintiffs.”

In this state the rule has been pushed further, so that, even if signed by an agent, the principal's name must appear. Mentz v. Newwitter, 122 N. Y. 491, 25 N. E. 1044, 11 L. R. A. 97, 19 Am. St. Rep. $14. The extension of the rule, however, does not appear to hold in England. Newell v. Radford, L. R. 3 C. P. 52. For an application of the rule, see Grafton v. Cummings, 99 U. S. 100, 25 L. Ed. 366; Lincoln v. Erie Preserving Co., 132 Mass. 129; Nichols v. Johnson, 10 Conn. 192; Calkins v. Falk, 1 Abb. Dec. 291. Contra, Salmon Falls Manufacturing Co. v. Goddard, 14 How. 446, 14 L. Ed. 493. However, the decision last cited was hy a divided court, and the decision of the majority was questioned and it seems to me practically overruled in Grafton v. Cummings, supra. The reason upon which this rule is founded is that, unless the names of both parties appear, the contract may be foisted upon any one by perjury, which is the very thing that the statute of frauds was enacted to prevent.

[2] But in the case at bar the memorandum names both seller and buyer and is signed by both. It is not, therefore, within the reason of the rule established in the above-cited cases. In this respect it literally complies with the statute. The memorandum is subscribed by the grantor. The suggested difficulty is that the memorandum does not on its face disclose which of the two subscribers is the grantor. The question, therefore, is not so much as to the statute of frauds as to the application of the maxim “Id certum est quod certum reddi potest."

[3] No terms can be added to a contract by parol evidence, and I apprehend the same rule applies to the note or memorandum. But when it is a question of the application of the writing, the facts and circumstances within the knowledge of the parties when the writing was made may be disclosed, not to vary, but to establish, its meaning. Evidence of such facts and circumstances would show which of the two parties was the owner of the property, and then would be determined which is the vendor. There is one case directly in point. Newell v. Radford, supra. In that case there was a memorandum of the sale of flour. Both parties were named, but it did not appear

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