Foot v. Webb

By the Court, Mullin, J. By the agreement sought to be specifically enforced in this case, the intestate covenanted to sell and convey the premises therein referred to, “ as soon as the party of the second part (the plaintiff in this suit) secures the payment of the same;” that is, the purchase price. The word “ secures” was used in its popular signification, and that signification is not equivalent to payment in money, but implies something given and received, by means of which payment may at some future time be procured or compelled. It implies a term of credit. How long that credit .was to be, or what security should be given, is left wholly unprovided for by this writing. This case is distinguishable from that of Wright v. Weeks, (25 N. Y. 153.) In that case the agreement was to sell, within three months, the premises described, for $6500, upon the terms as specified. The Court of Appeals held that the writing was incomplete without the terms referred . to, and as those terms rested in parol, the contract was void within the statute of frauds; that by that statute the whole contract must be in writing, and cannot rest partly [53] in writing and partly in parol. In the case before us there is nothing to show that any part of the agreement rests in parol, and hence if the agreement is defective it is so because the parties have failed to .agree upon the terms of credit, or the kind of security to be given. The defendant’s counsel insists that the consideration of the agreement is not stated, and it is for that reason within the statute of frauds and void. In this, I think he is mistaken. A consideration is stated in the most explicit terms. The language is, the party of the first part agrees to sell and convey “ in consideration of the sum of $700,” and the agreement is signed and sealed by the plaintiff'. If this is not a sufficient statement of the consideration to satisfy the statute, it would be difficult to find language which would be more expressive. I am entirely satisfied that the contract is not avoided by the statute of frauds. But although the contract may not be invalid by reason of the statute of frauds, the question to be next considered is whether it is void because of uncertainty as to its terms. In Ohitty on Contracts, 73, it is said: “But in order to constitute a valid parol or written agreement, the parties must express themselves in such terms that it can be ascertained to a moral or reasonable degree of certainty what they mean. And if an agreement-be so vague and indefinite that it is not possible to collect the full intention of the parties, it is void; for neither the court nor the jury can make an agreement for the parties.” Courts of equity refuse to compel the performance of either a verbal or written agreement unless established by competent proofs to be clear, definite and unequivocal in ■all its terms. If the terms are uncertain, or ambiguous, or not made out by satisfactory proofs, a specific performance. will not be decreed. (2 Story’s. Eq. Jur. §§ 764, 767, 751.) It is inferable from the language used in reference to the degree of certainty required by courts of equity in [54] order to induce them to compel specific performance of a contract, that a greater degree of certainty is required than is necessary to render valid a contract in the courts of law. But I do nof think that any such distinction was intended. The rules of construction of contracts are the same in both courts; and no reason can be assigned for demanding a greater degree of certainty in the one court ,than in the other. It is true, it is matter of discretion whether specific performance will, in any case, bp granted; yet I apprehend the discretion must be exercised according to certain well established rules, and does not rest in the mere caprice" of the judge. The question then is, is the contract under consideration void for uncertainty because it does not fix the term of credit, nor the kind or nature of the security to be given for the purchase money ? It is said in 2 Parsons on Contracts, 47, that when anything is to be done, as goods to be delivered, or the like, and no term is specified in the contract, it is then a presumption of law that the parties intended and agreed that the thing should be done in a reasonable time.' But what is a reasonable time is a question of law for the court. This rule applies to the time within which the security was to be given. The defendant bound himself to convey “ as soon as the party of the second part secures the payment,” &c. It was held by the Supreme Court of Pennsylvania, in Guier v. Page, (4 Serg. & Rawle, 1,) that a sale for approved indorsed paper means, in law, a sale for paper which ought to be approved, and not for paper such as the seller may approve. It was held in Winslow v. Copeland, 3 Shepley, 276,) that when payment for land is to be made by good notes secured by mortgage on the premises, the notes must be good without the mortgage, and the mortgage is to be additional security. These cases have gone the farthest in supplying apparent omissions in contracts, and in giving effect to the’ intention of the parties, yet these do not go far enough .to enable the court to fix the term of [55] credit which the plaintiff should have for the payment of the purchase money, nor the kind of security which he ought to have given. I think the contract is void for uncertainty in these respects. [Onondaga General Term, April 3, 1866. If the question was, whether a reasonable credit had not already been given, and whether the purchase money was not now due and payable, I should answer both questions in the affirmative. But we are to decide whether the contract was valid when made; as, if it was not then valid, it is. not now, unless it has been made valid by the receipt of the interest by the intestate from year to year, up to the time of his death. But I do not see how that remedies the defects in the agreement. It does not fix a term of credit, nor prescribe the kind of security which should be given. If these views are correct, it follows that no amendment of the complaint could aid the plaintiff. The written agreement being void, a verbal one couched in the same language must be also void by reason of the same defects. It is not alleged that there was a verbal agreement containing provisions as to the time of credit, or the nature of the security to be given, and without this it would be folly to allow the commencement of an action which must be defeated on precisely the same ground as the present one. No question is made as to whether the contract was void for want of mutuality, but I apprehend that no advantage could be taken Of that defect if there was a want of mutuality. (See Worrall v. Munn, I Seld. 229, and cases cited on page 246.) The judgment must be affirmed, with costs. Judgment affirmed. Bacon, Foster and Mullin, Justices.]