
    Jean Benton Todd, Appellant, v. Frederick B. Pratt, Respondent.
    First Department,
    March 8, 1912.
    Statute of Frauds — action for breach, of oral contract to convey lands in consideration of discontinuance of action — equity — part performance of oral contract.
    The plaintiff made a contract to purchase three and one-half acres of a tract of land upon which there was a prior mortgage. She brought suit to enforce specific performance of her contract and filed a Us 
      
      pendens. The mortgagee sued to foreclose the mortgage, making the plaintiff a party defendant. To hasten the foreclosure the defendant requested the plaintiff to discontinue her action and cancel the Us pen-dens, which she did in consideration of the defendant’s oral promise, upon his purchase of the property at the foreclosure sale, to convey to the plaintiff the land which she had contracted to purchase, and to save her harmless from loss by reason of the discontinuance of her suit for specific performance. The defendant purchased the land at the foreclosure sale and sold the three and one-half acres to other parties, and plaintiff brings this action to recover damages for breach of contract, alleging injury to other property to which she intended to annex the three and one-half acres. The defendant pleads the Statute of Frauds.
    Held, that the plaintiff’s relation to the mortgage was that of a subsequent vendee and, therefore, she did not lose anything by the discontinuance of her suit and the canceling of the Us pendens;
    
    That the promise to convey the three and one-half acres, when purchased, ■ was void for not being in writing; that there is no element in the case to take the agreement out of the Statute of Frauds; the act of part performance was the discontinuance of an action which it was futile to prosecute;
    That there was no confidential relation between the parties, for an abuse of which relief may be obtained in equity.
    The acts of part performance which will take a case out of the Statute of Frauds must be unequivocally referable to the agreement of which they are a part execution.
    McLaughlib, J., dissented, with opinion.
    Appeal by the plaintiff, Jean Benton Todd, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the'county of New York on the 18th day of May, 1911, upon the pleadings, and also from an order entered in said clerk’s office on the 17th day of May, 1911, directing the entry of the said judgment.
    
      F. J. Gardenhire, for the appellant.
    
      W. Cleveland Runyon, for the respondent.
   Miller, J.:

In a nutshell the case is this: The plaintiff made a contract to purchase three and one-half acres of a tract of land upon which there was a prior mortgage to secure bonds owned by the defendant. She brought an action to enforce specific performance of her contract and filed a Us pendens. The trustee brought an action to foreclose the mortgage, making the plaintiff a party defendant. To hasten the foreclosure proceedings the defendant requested the plaintiff to discontinue her action and cancel the Us pendens, and the plaintiff says that she did that in consideration of certain promises made hy the defendant, which were evidently so indefinite in the plaintiff’s mind that in her complaint she expressed them in vague fashion as follows: “That he, Pratt, when he became possessed of said property would do with said plaintiff, Jean Benton Todd, upon his part, everything that the officers and agents of the Indian Kettles Park Association, corporation, had agreed to do with her, with reference to said tract of approximately three and a half acres of land, which was that when Pratt should have the title to said property he would carry out with said plaintiff the contract in writing existing between this plaintiff, Jean Benton Todd, and said Indian Kettles Park Association, to wit, to make title in said plaintiff of said approximately three and a half acres of land on the lake front of Lake George, as aforesaid, which contract was the subject-matter of plaintiff’s suit so mentioned in paragraph 1 herein; and said Pratt at said time contracted and agreed that when he should have acquired the title to said Indian Kettles Park Association property aforesaid, he would protect in the plaintiff herein, Jean Benton Todd, her interest in said approximately three and one-half acres of lake front land as fully as she had an interest therein, and as fully as it could be protected by said action which the plaintiff had brought, and which said Pratt desired discontinued, contracting and agreeing with said Jean Benton Todd that if she would dismiss her said action, as aforesaid, and withdraw her said notice of lis pendens, that he, the said Pratt, would see to it that she, the said Jean Benton Todd, should lose nothing of value by reason of such action on her part.” The defendant purchased the tract at the foreclosure sale and sold the three and one-half acres, which the plaintiff had contracted to purchase, to other parties, and the plaintiff brings this action to recover damages for breach of contract, the* particular damage alleged in the complaint being, not the loss of her bargain, but injury to other property to which she intended to annex the three and one-half acres. The defendant pleads the Statute of Frauds. In her reply the plaintiff admits that the contract sued on wag not in writing, and so the question is presented on this motion for judgment on the pleadings whether the defendant can successfully invoke the Statute of Frauds as a defense. (Seamans v. Barentsen, 180 N. Y. 333.)

To reduce the vague averments of the complaint to precise terms and to state them most favorably to the plaintiff, the defendant’s promise was: (1) Upon the purchase at the foreclosure sale, to convey to the plaintiff the three and one-half acres which she had ■ contracted to purchase; (2) to save her harmless from loss by reason of the discontinuance of her action for specific performance. Considering those promises in the inverse order, it is plain that the complaint fails to allege that the plaintiff suffered any loss. Her contract was subject to the prior mortgage and, of course, was extinguished by the foreclosure of that mortgage. By her consent the foreclosure action was expedited. Thereby she enabled that to be done speedily which, in any event, would have ultimately been accomplished. She alleged in her complaint that the corporation with which she contracted “had full authority to contract for the sale of said three and a half acres by reason of provisions relating thereto in the trust deed, or instrument expressive of said lien;” but, obviously, that is a mere conclusion of law. The provisions of the trust deed or mortgage referred to are nowhere stated and, of course, it is impossible to determine their legal effect without knowing what they were. According to her complaint the plaintiff’s relation to the mortgage was that of a subsequent vendee. She, therefore, fails to show that she lost anything by the discontinuance of her action and the canceling of the lis pendens filed therein.

Plainly, the promise to convey the three and one-half acres, when purchased, was void for not being in writing, and the question arises whether there is any element in the case to take it out of the rule of the Statute of Frauds. All of the cases cited by my brother McLaughlin, except Riggles v. Erney (154 U. S. 244), -involved the element of abuse of a position of confidence and trust, the familiar case for treating the wrongdoer as a trustee ex maleficio. It certainly cannot be claimed that there was any confidential relation between the parties in this case or that the defendant undertook as agent for the plaintiff to purchase at the sale and thereby to induce her to stay away or to refrain from bidding, as was the case in Ryan v. Dox (34 N. Y. 307). While equity is quick to circumvent that species of fraud which consists in the abuse of a relation of trust and confidence, it will not presume such a relation to have existed for the sake of exercising its extraordinary remedial jurisdiction.

There being, then, no question of the abuse of a confidential relation, the plaintiff must succeed, if at all, on the theory of part performance. It is undoubtedly the rule that, where one party, relying upon a promise of the other, has so far performed that he cannot be restored to his former position and will suffer damage, the breach of the promise is treated as a species of fraud from the consequences of which the courts will relieve the party who has thus wholly or partly performed. But the difficulty in applying that rule to this case is that the plaintiff has suffered no damage. She merely made it possible for a judgment foreclosing her interest to be entered sooner than it otherwise could have been entered. Merely saying that the courts will not suffer the Statute of Frauds to be made an instrument of fraud determines nothing. It must always be remembered that the breach of a void agreement is not a fraud in law. (Levy v. Brush, 45 N. Y. 589; Wheeler v. Reynolds, 66 id. 227.) The acts of part performance which will take a case out of the Statute of Frauds must be unequivocally referable to the agreement of which they are a part execution. (Wheeler v. Reynolds, supra; Cronkhite v. Cronkhite, 94 N. Y. 323.) The act of part performance in this case was the discontinuance of an action which it was futile to prosecute. For aught that appears, the plaintiff, if well advised, would have discontinued her action anyhow, when the foreclosure action was begun. How can it be said, then, that her act in its object and design plainly refers to the alleged agreement % She must fail, then, on the theory of part performance both because she has suffered no damage and because the act of part performance relied upon is not unequivocally referable to the alleged void agreement.

The judgment and order should be affirmed, with costs.

Ingraham, P. J., Laughlin and Dowling, JJ., concurred; McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

In determining whether the court erred in directing judgment on the pleadings dismissing the complaint every material fact alleged therein, as well as all inferences that can reasonably and fairly be drawn therefrom, must be accepted as true. If the facts stated in the complaint show that the plaintiff is entitled to any relief, either legal or equitable (Wetmore v. Porter, 92 N. Y. 76; Hotel Register Co. v. Osborne, 84 App. Div. 307; Clark v. Levy, 130 id. 389), then the judgment and order appealed from should be reversed.

Turning to the complaint it will be found that the plaintiff alleges, in substance, that the Indian Kettles Park Association, a domestic corporation, owned a tract of land on the shores of Lake George, three and one-half acres of which it had contracted, in writing, to sell to the plaintiff; that prior to the time this contract was entered into the Indian Kettles Park Association had executed to the Standard Trust Company of Yew York a mortgage upon the entire tract to secure the payment of an issue of bonds, such mortgage, however, containing provisions which enabled the association to contract with the plaintiff; that the plaintiff having performed said contract upon her part, commenced an action in the Supreme Court of the State of Yew York to compel the association to carry out the contract on its part by giving her a deed, and in that action the Standard Trust Company was a party defendant; that she had also filed in the proper clerk’s office a notice of the pendency of the action; that at or about the same time her action was commenced the Standard Trust Company commenced an action in the Supreme Court to foreclose its mortgage and she was made a defendant; that the defendant in this action owned substantially all of the bonds, payment of which the mortgage was given to secure, and for that reason desired the foreclosure action should be speedily terminated by a judgment of foreclosure and sale, which could not take place so as to give good title to the land claimed by this plaintiff until after her action had been disposed of; that to obviate the delay he entered, into an oral agreement with her that if she would discontinue her action and cancel the Us pendens he would, at the foreclosure sale, purchase the land covered by the mortgage and then carry out the contract which the association had made with her by conveying the three and one-half acres therein mentioned; that he would protect her interest as fully as it could be protected in such action, and if she would do as he requested he would see to it that she “should lose nothing of value by reason of such action on her part; ” that the plaintiff fully performed this agreement on her part, and thereupon the foreclosure action proceeded to a judgment under which a sale took place, at which this defendant became the purchaser of the entire tract; that he then refused to carry out his agreement with the plaintiff and put it out of his power to perform by conveying the three and one-half acres to another party. The complaint further alleges that the plaintiff owns land adjacent to the three and one-half acres, upon which is a valuable residence; that the three and one-half acres lie between her property and the shores of Lake George, is the only convenient means of access to the lake, and for that reason would add materially to the value of her property by giving her a large frontage on the lake; that defendant’s failure to carry out his agreement has caused her damage to the amount of $20,000, for which sum judgment is demanded.

But it is said, notwithstanding all of the foregoing facts are admitted to he true, nevertheless the court is powerless to aid the plaintiff; in other words, because her contract with the defendant was not in writing, the Statute of Frauds is a bar to a recovery upon her part. I cannot concur in this view. The statute was designed to prevent frauds not to perpetrate them. It was settled nearly fifty years ago that the courts would not permit a party to make a fraudulent use of the Statute of Frauds (Ryan v. Dox, 34 N. Y. 307), and since that time at least the courts have not hesitated, in any case where it clearly appeared that a party was seeking to shield himself behind the statute for the purpose of perpetrating a fraud upon another, thereby causing him damage, to interfere and prevent such use. (Canda v. Totten, 157 N. Y. 281; Wood v. Rabe, 96 id. 414; Congregation Kehal Adath v. Universal B. & C. Co., 134 App. Div. 368; Gallagher v. Gallagher, 135 id. 457; affd., 202 N. Y. 572.) I understand the rule tobe that if the parol agreement be clearly and satisfactorily proven, and one party, relying upon it and the promise of the other to perform on his part, has either partially or fully performed, and by reason thereof cannot be restored to his former position, and will suffer damage, the other party will be required to perform or respond in damages. (Riggles v. Erney, 154 U. S. 244.)

Here, the plaintiff has fully performed. She discontinued her action against the Indian Kettles Park Association and thereby lost whatever right she had to enforce her contract, either against it or the trust company. The value of such contract was thereby destroyed. The discontinuance of the action and the canceling of the Us pendens was a good and sufficient consideration for the defendant’s agreement, and if able to do so he should be required to specifically perform. This, however, according to the allegations of the complaint, he is unable to do by reason of his conveyance of the land in question to another party. Having- put it out of his power to perform by conveying the three and one-half acres to her, he should, in lieu thereof, pay the damages she has sustained by reason of his failure.

For these reasons I am unable to concur in the prevailing opinion, and vote to reverse the judgment and order appealed from.

Judgment and order affirmed, with costs.  