
    ELIZABETH B. ANDREWS, RESPONDENT, v. MARY L. WESTAWAY, APPELLANT.
    Submitted July 9, 1923
    Decided November 19, 1923.
    An oral promise to pay one thousand dollars by tlie defendant to the plaintiff, in consideration of a sale and conveyance of land to a third person, the grantee named in a written agrément made between the plaintiff and such third person is not barred by the statute of frauds. Such promise is enforceable. The statute of frauds is not applicable. The ease is controlled by Birch- v. Baker, 85 N. J. L. C60. The principle of that case reaffirmed and applied.
    On appeal from the Supreme Court.
    For the appellant, Runyon & Johnson and Walter Tj. Mc-Dermott.
    
    For the respondent, LehTbach & Van Duyne.
    
   The opinion of the court was delivered by

"Black, J.

The meritorious and only question presented for solution on this appeal is settled by our decision m the case of Birch v. Baker, 85 N. J. L. 660. In that case the question presented was whether a* promise, not in writing, to pav the owner of lands an agreed consideration if he convey the land to one in performance of a written contract by the' promisor, to secure such conveyance, and the owner does convey as requested, relying upon such promise, is enforceable. It was there held that such a promise is enforceable as not being barred by the statute of frauds, overruling the Supreme Court in the case of Birch v. Baker, 79 Id. 9, which held that such a promise was unenforceable under the statute of frauds. While the facts in the case under discussion are not precisely like those of Birch v. Baker, 85 Id. 660, they fall, however, within the scope of that decision. There is no substantial legal distinction between the two cases. In that case a written, contract for the sale of land had been executed by a delivery and acceptance of a conveyance passing the title. The promise was to pay the owner of the lands an agreed consideration, if he convey the land to one in performance of the written contract, by the promisor to secure such conveyance. So, in this case, a written contract was entered into between the parties to convey the property, which was duly carried out by a conveyance. This was accompanied by an oral promise to pay $1,000, by the defendant to the plaintiff, in consideration of a sale of the lands owned by the plaintiff to Virginia D. Wienges, the grantee named in the agreement of sale.

The trial judge refused to nonsuit or direct a verdict in favor of the defendant. He also charged the jury “If you find this oral agreement was made, it is good in law.” “It was a valid contract in law. It is not necessary in this case to have a written agreement.” Exceptions wore duly noted as grounds of appeal.

While there are seven grounds of appeal filed, they all involve this one point, i. e., whether the oral promise sued on Avas within the statute of frauds and therefore unenforceable.

The trial judge applied the principle decided in Birch v. Baker, viz., that the statute of frauds was not applicable. This, we think, Avas not error.

In view of the extended discussion and citation of authorities in the opinion in Birch v. Baker, supra, there seems to be no occasion for any further discussion of this topic.

Binding no error in the record, the judgment of the Supreme Court is affirmed.

White, J.

(dissenting). In order to prevent fraud our statute of frauds provided “that no action shall be brought upon any contract: for sale of lands * * * unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith.”

In. this case the defendant is sued upon an alleged oral contract (which she denies malting) to pay an additional consideration for the entering into' and performance of a contract in writing bjr the plaintiff with a third person fox the sale to the latter by the plaintiff of certain land for a definite pricey all of which price such third party paid when the conveyance passed, in accordance with the written contract. If there ever was a case falling within both the terms and the purpose of the statute it is this one.

It is said, however, that as the courts will not permit the statute to prevent frauds, to be so applied as to work fraud, the defendant will be held liable on her vérbal promise, admittedly void when made, because, subsequently, the third party with -whom the written contract was made', accepted a conveyance in pursuance of, and in exact accordance with, such written contract, and paid the full price therein specified, and this although it is not claimed that defendant benefited in any way from, or was. a party to', such conveyance, nor to the acceptance thereof.

For the reasons stated in my concurring opinion in Birch v. Baker, 85 N. J. L. 660, I dissent from this viewr. In that case the conveyance was made at defendant’s request-in performance of a perfectly valid written contract signed by the defendant to procure the making and delivery of just that conveyance, and, consequently, the defendant was in the same position as if the conveyance had been made to and, accepted by him. Here there is no such situation, and, consequently, the principal established by that decision is not, in my judgment, decisive of this case.

For affirmance — The Chancellor, Chief Justice, Tbenchard, Parker, Kalisch, Black, Katzekbach, Hefpen-KETMER, AcKERSON, VAN BuSKIRTC, J J. 10.

For reversal — White, J. 1.  