
    Edward A. Milliman, Resp't, v. George Huntington, Impl'd, App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    Specific performance—Incomplete agreement.
    Plaintiff gave to H., in writing, an option to purchase a farm of 120 acres, at §500 an acre, within a certain time, the price being payable one-fifth down and balance to he secured by mortgage of not less than three years at 6 per cent., plaintiff to have the privilege of retaining one undivided third “ on the same terms as the purchasers.” It also provided that a contract would be given on receipt of the first payment, and a deed when the total of one-fifth was paid. The option was accepted, hut the time for drawing the contract was extended, and it was never drawn. It also appeared that defendant was to form a syndicate to purchase this land, which he never did. Ile'd, that the instrument was not so much a contract for the sale of land as an agreement to make a contract; that its terms, especially as to the terms upon which plaintiff could retain the one-third interest and as to the time the mortgage should run, were too indefinite and uncertain to entitle H. to specific performance or to constitute a defense to an action for specific performance of a subsequent contract of sale of the land to another party, to which H. was made a party as having an interest in the premises.
    Appeal by the defendant, Huntington, from a judgment of the county court of Riagara county, entered on the findings and decision of the court.
    
      A. Moot, for app’lt; A. K. Potter, for resp’t.
   Dwight, P. J.

The action was to enforce the ance of a contract of the defendant, Dold, to purchase from the plaintiff a farm of about 120 acres in the town of Wheatfield, in Miagara county, which contract was executed with the plaintiff February 24, 1892, and to determine the claim of the defendant, Huntington, to an equitable interest in the same property, by virtue of a contract between him and the plaintiff which was executed on the 17th day of February, 1892.

The answer of the defendant, Dold, admitted the title of the plaintiff to the premises described, in the complaint, saving and excepting the interest of the defendant, Huntington, if any, therein ; admitted all the other material allegations of the complaint; averred his readiness to perform the contract on his part whenever the claim of Huntington, of which the latter had given him notice, should be extinguished, and demanded judgment establishing the respective rights of the plaintiff and Huntington in the-premises, and that upon performance by him, Hold, of the contract on his part, the plaintiff and Huntington be adjudged to convey to him the whole of said premises.

The answer of Huntington sets out, in substance, his version of the contract-or agreement between himself and the plaintiff; avers that it provided for an election by the plaintiff, which was after-wards exercised by him, to retain an undivided one-third of the premises, and that it provided for the execution, by the parties thereto, of a formal instrument, embodying its provisions, on the 18th day of February, 1892, at Tonawanda; that the parties met at the time and place mentioned, when the defendant, Huntington, was ready and willing and offered to perform the terms of the agreement on his part, and to execute the formal contract as agreed, and requested the plaintiff to do the same, but that, at the request, of the latter, the time for the closing of the agreement was extended to include the 20th of the same month; that on that day the parties again met, when the defendant, Huntington, was still ready and willing and again offered to perform on his part, and demanded performance by the plaintiff, but that the latter then refused and still refuses to perform on his part; that the said agreement provided for a release clause to be inserted in the mortgage to be given by the defendant, Huntington, and that he offered to waive the insertion of such or any release clause, and to execute the mortgage for three years or any other term satisfactory to the plaintiff. And said answer avers that by reason of said contract, the defendant, Huntington, obtained and now holds the equitable title to an undivided two-thirds of the premises described, and a right or interest therein prior-and superior to any right or interest of the defendant, Hold, by reason of the alleged contract with him, set out in the complaint; and said answer demands judgment dismissing the plaintiff’s complaint as to the defendant, Huntington, with costs.

It is thus apparent that the only real issue in the case was between the plaintiff and defendant Huntington, viz.: whether the latter had any interest in the premises described, by virtue of his contract with the plaintiff, which could stand in the way of the full performance of the contract of the plaintiff with the defendant, Dold, and that question may be otherwise stated to be whether the contract of Huntington was one of which specific performance could be, to any extent, enforced.

There is no disputed question of fact in the case; counsel for the appellant concede that the facts are correctly found by the learned county court. The facts so found which relate to the contract of Huntington are, in substance, as follows:

On the 21st of January, 1892, the plaintiff, at the request of Huntington, signed and delivered to him an instrument in writing in the following terms:

“ January 21, 1892.
“ In consideration of the sum of one dollar paid to me this date, the receipt whereof is hereby acknowledged, I hereby agree to give George Huntington the right to purchase my home farm fronting on the Niagara river about one mile west of Gratwick station, consisting of about 120 acres more or less, for the sum of $500 per acre, if taken within twelve days of this date, terms, one-fifth down, balance to be secured by bond and mortgage of not less than three years duration, with six per cent interest, payable semi-annually, I to have the privilege of retaining one undivided third interest on the same terms as the purchasers.
“ The mortgage to be subject to release of any part or all the property on conditions to be hereafter agreed upon.
“ First payment of one-fifth down to be made as follows, viz.: $4,000 within ten days after February 1st, and the balance within thirty days from first payment.
‘‘A contract will be given on receipt of first payment of $4,000 and a deed when the total of one-fifth, or $12,000 is paid up, said sum to include the one-third interest, or $4,000, which I retain.
“(Signed) E. A. Milliman.”

On the 2d day of February the plaintiff, at the request of Huntington, indorsed on the above the memorandum “ Option extended to February 17th,” and signed it.

On the 17th of February both parties signed a further agreement, indorsed on the same instrument, as follows:

“ The terms of the within contract are hereby accepted by both parties hereto. The parties to meet February 18,1892, and sign a formal contract at Tona wanda, George Huntington to pay $500 at the signing of the contract to bind the bargain, the same to be applied on the purchase price.
“February 17, 1892.
“ (Signed) George Huntington.
E. A. Milliman.”

On the 18th day of February both parties signed a still further agreement, indorsed as before, as follows:

“ In consideration of the sum of one dollar, the receipt whereof is hereby acknowledged, the time within which to close up the within contract is hereby extended up to and including February 20, 1892, all the terms to remain the same.
“ Dated February 18, 1892.
“ George Huntington.
“E. A. Milliman.”

Nothing was ever paid by Huntington on account of these agreements, or either of them; nor was anything ever done by the parties, or either of them, by way' of performance of such agreements, or either of them.

The agreement of January 21, 1892, above quoted, does not express the entire agreement made between the plaintiff and Huntington at the time it was made; but, in addition to what is expressed therein, it was at the same time, and as part of the same agreement, verbally agreed between them that a company or syndicate would be gotten up by or through the influence of Huntington to purchase the premises described in the complaint; and the words in the agreement, “I to have the privilege of retaining one undivided third interest on the same terms as the purchasers,” were intended to give the plaintiff the privilege, at his election, to take an interest in the company or syndicate so to be formed. Huntington never procured the formation of such company or syndicate.

And as conclusions of law the court found (1) that the defendant Huntington had no right or claim to the property described in the complaint, nor interest therein, nor is entitled to have the agreement set forth in the findings of fact, or any modication thereof specifically performed; (2) that the plaintiff is entitled to a specific performance of his contract with the defendant Hold ; and he directed judgment accordingly, with costs against the defendant Huntington.

Upon the foregoing statement we can have no doubt of the correctness of the conclusions of the learned county court. The series of instruments or memoranda signed by one or both of the parties seem to constitute not so much a contract for the sale of land as an agreement to make a contract, some of the provisions of which still rested in parol, some remained to be subsequently agreed upon, some were so uncertain and indefinite that their specific performance could not be decreed. The fact found by the court, that it was a part of the original agreement between the parties that Huntington was to organize or procure the organization of a syndicate to purchase the land, is fully borne out by the evidence aliunde and it rests wholly in parol. It, or something of similar effect, is necessary to give any intelligible meaning to that provision of the written agreement which gives to Milliman “ the privilege of retaining one undivided third interest, on the same terms as the purchasers.” The reference in these last words is necessarily to purchasers other than or including Huntington ; and as there is. ño other mention of such “ purchasers ” in the written memoranda, it become necessary to resort to evidence aliunde to explain it. That resort being had, it is plain that the provision just quoted is entirely indefinite ; for what terms or .price would finally be obtained from the purchasers was altogether uncertain. A letter from Huntington, which is in evidence, under date of February 12th, shows that it was a part of the scheme conceivedi by him that the purchasers or members of the syndicate should come in “ on the basis of $600 per acre," but whether that part of the scheme would be fully realized remained to be demonstrated, and, therefore, the terms upon which Milliman might, at his election, retain an undivided one-third interest in the property and enterprise, were left wholly uncertain. For that reason, if for no other, the contract is incapable of specific enforcement. 1

Another important provision of the contract was expressly left to be subsequently agreed upon. That was the provision relating to the release of portions, or the whole of the property from the mortgage to be given by the purchaser or purchasers. Whether the objection on this ground to the specific' enforcibility of the contract can be obviated by a waiver of the provision on, the part of the defendant Huntington, as being one wholly for his benefit, is a question upon which we are not entirely agreed and upon which we do not pass.

But the same cannot be said of the provision in respect to the time which the mortgage should have to run. By that provision the large balance of four-fifths of the purchase price of $60,000 was “to be secured by bond and mortgage of not less than three years duration.” It is impossible for the court to say that this limitation of time was for the benefit solely or chiefly of the purchaser. On the contrary, in these days of low rates of interest, the investment of $48,000 on good security, at six per cent, payable semi-annually, was a very favorable one, and one which the vendor might well desire to extend for as long a time as possible. But the provision for the duration of the mortgage was entirely uncertain except on the minimum, side, and was incapable of being rendered certain except by further agreement of the parties. The offer of the defendant to make the mortgage for any time to be named by the plaintiff was a liberal one, no doubt, but it did not render the contract enforceable as it was made, and, in an action for the specific performance of a contract, even equity will not compel a man to make a new contract, however favorable to himself, in order that it may be specifically enforced.

A contract which, as in this case, is required by the statute of frauds to be in writing, must be all in writing in order to be valid; and, in order to be specifically enforced it must, in the nature of things, be certain and definite in all its material provisions. Bailey & B. v. Ogdens, 8 Johns., 399; Abeel v. Radcliff, 13 id., 297; Wright v. Weeks, 25 N. Y., 153; Buckmaster v. Thompson, 36 id., 558; Brown v. N. Y. C. R. R. Co., 44 id., 79; Stanton v. Miller, 58 id., 192; Drake v. Seaman, 97 id., 230; S. C., 27 Hun, 63.

For failure to comply with these well nigh elementary rules we regard the contract in "this case as neither entitling the defendant Huntington to the affirmative relief asked for in his answer, nor as constituting any defense to the cause of action set out in the complaint.

The judgment appealed from should, therefore, be affirmed.

Judgment of the county court of Niagara county affirmed, with costs against the defendant Huntington.

Macomber, Lewis and Haight, JJ., concur.  