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 Ñ. 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.

(192 App. Div. 54)

(182 N.Y.S.)

TOBIAS v. LYNCH.

(Supreme Court, Appellate Division, Second Department. May 21, 1920.) 1. Frauds, statute of 107 (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 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 448-Parol evidence admissible to establish meaning of written 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 113 (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 Ideal, 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 113 (1) -Memorandum must include all terms of contract.

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 75-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:

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"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. 514. 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 by 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

(182 N.Y.S.)

which was seller and which was buyer. Parol evidence was admitted that one was a flour dealer and the other a baker. The principle has been applied to determine the location and identity of the property which is the subject of the sale. Miller v. Tuck, 95 App. Div. 134, 88 N. Y. Supp. 495; Morrison v. Brenmohl, 137 App. Div. 4, 122 N. Y. Supp. 81. In this case it was shown by stipulation that defendant was the vendor. The ambiguity of the memorandum was therefore completely removed.

[4, 5] The appellant also claims that the memorandum is insufficient, because it omits that part of the agreement which fixes a date for the closing of the title and the payment of the consideration. It is unquestionably the law of this state that, in order to satisfy the requirements of the statute of frauds, the note or memorandum must include all the terms of the contract which the parties made. Brauer v. Ocean Steamship Navigation Co., 178 N. Y. 339, 70 N. E. 863; Drake v. Seaman, 97 N. Y. 230; Ward v. Hasbrouck, 169 N. Y. 407, 62 N. E. 434. The contract is one thing, and the written evidence required by the statute of frauds quite another. The statute is satisfied by a note or memorandum of the contract which was actually made by the parties. If any of the terms of such contract are omitted from the memorandum, the statute is not satisfied and the contract is void. The rule, therefore, has been asserted that parol evidence of the terms of an oral contract may be admitted to show that the memorandum lacks one of the terms agreed on. Pitts v. Beckett, 13 M. & W. 743. So it is said in Benjamin on Sales, § 209:

"On the same principle, parol evidence is admissible for the purpose of showing that the written paper is not a note or memorandum of the antecedent parol agreement, but only of part of it, and the decisions are quite in accordance with this view."

It seems to me that this doctrine opens the door to frauds of the same character that the statute was enacted to prevent. I see no reason why the rule, which prohibits parol evidence to vary a written contract, should not be applied to the note or memorandum in writing. If it is complete on its face, the doctrine set forth in the foregoing extract from Benjamin on Sales would permit one of the parties to escape from his contract by testifying that it contained a provision not present in the memorandum. I cannot find that the rule has been adopted in this state. In Davis v. Shields, 26 Wend. 341, this question was not considered. The case proceeded on the assumption that a clause in the antecedent parol contract was omitted from the memorandum and the memorandum was therefore insufficient. It does not appear that this was established by parol evidence. In Wright v. Weeks, 25 N. Y. 153, it appeared on the face of the memorandum that specified terms were omitted.

However, the decision of this question is not relevant to the case at bar. The fourth paragraph of the complaint is as follows:

"That the balance of the purchase price, to wit, the sum of $1,200, was to be paid on the closing of the title, and that said title was set for closing, at the option of the plaintiff herein, at any time before the 1st day of June, 1919."

The decision of the court contains a finding in the same words. If this was an allegation and finding that one of the terms of the antecedent contract fixed the time for closing, and the payment of the balance of the purchase price, then the contract is void, because the memorandum did not contain all its terms. As the cases above cited decide, all the terms of the contract must be found in the note or memorandum. But I am not prepared to say that such is necessarily the meaning of the allegation and finding.

[6] The memorandum did not fix the time for closing, and in the absence of such provision the law provides that the contract shall be closed within a reasonable time. It will be noted that neither the quoted paragraph of the complaint nor the finding states that this was one of the terms of the contract, although we find that explicit allegation in the second and third paragraphs. Neither does the stipulation on which the finding was founded indicate that this was one of the terms of the contract. There was no independent proof of an antecedent contract; the contract was proved by the writing only; a parol stipulation could not vary it. Under the case as presented, we must assume that the paper writing was the contract. The contemporaneous stipulation was not competent to modify the contract, which remained as the law made it-a contract to be performed within a reasonable time; and the tender of the purchase price was made in a reasonable time. Long v. Millar, 4 C. P. Div. 450; Morrison v. Brenmohl, supra.

The judgment should be affirmed, with costs. All concur.

FORSHAW v. HATHAWAY.

(Supreme Court, Appellate Term, Second Department. May Term, 1920.)

1. Landlord and tenant 190 (2)-Partial eviction relieves tenant from liability for rent.

Where there has been a partial eviction by the landlord, the tenant cannot be required to pay rent.

2. Landlord and tenant 190 (2)-Tenant cannot hold part of premises and refuse to pay rent because entire premises not delivered.

Where a landlord demised two buildings, but failed to put the tenant in possession of one, the tenant, who entered under the lease, cannot hold possession of the single building and at the same time refuse to pay rent, on the theory of partial eviction, for it would seem that no one could be evicted from something which he had never possessed, and furthermore the tenant has other remedies, and might have elected either to refuse to take possession under the lease and sue for damages, or might have sought an apportionment of rent.

3. Landlord and tenant 129 (1)—Rights of tenant on failure of landlord to deliver part of premises stated.

Where a landlord fails to deliver possession of part of demised premises, the tenant may elect to refuse to accept possession of any part, and recover damages, or he may accept possession of part, and bring action to have the rent apportioned, or for damages, or defend an action for rent or to dispossess him, on the ground that he is entitled to an apportionment of rent or damages.

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