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Alnor Construction Co. v. Herchet

Decided: June 6, 1952.

ALNOR CONSTRUCTION COMPANY, A CORPORATION, PLAINTIFF-APPELLANT,
v.
HENRY HERCHET AND KATHERINE HERCHET, DEFENDANTS-RESPONDENTS. ROBERT E. SCOTT AND RUTH E. SCOTT, TRADING AS R.E. SCOTT CO., PLAINTIFFS-APPELLANTS, V. HENRY HERCHET AND KATHERINE HERCHET, DEFENDANTS-RESPONDENTS



On appeals from the Chancery Division of the Superior Court, certified by the Supreme Court on its own motion.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Heher, J.

Heher

There are two issues here: (1) the vendee's right to specific enforcement of a contract for the sale and conveyance of lands situate in the Borough of Roselle Park, New Jersey; and (2) the brokers' right to compensation for the service rendered in negotiating the sale of the lands as provided in the contract.

The actions were consolidated and assigned for trial to the Chancery Division of the Superior Court.

Specific performance of the contract of sale was refused on the ground that the description of the lands therein given "is such that it cannot be stated with any degree of accuracy what was intended to be conveyed," and it "is not possible" for the court "to say from all of the testimony just what was really intended to be sold." The brokers' contract was read as conditioning the payment of compensation for the stipulated service upon the actual passing of title.

The vendee and the brokers appeal.

I.

The equitable remedy of specific performance is not available unless the contract be certain as well as fair and just in its terms and enforceable without hardship to either party; and the requirement of certainty has reference "both to the description of the property and the estate to be conveyed. Uncertainty as to either, not capable of being removed by extrinsic evidence, is fatal to any suit for a specific performance." Preston v. Preston, 95 U.S. 200, 24 L. Ed. 494 (1877). Vide Pomeroy's Equity Jurisprudence (5 th ed.), sections 1404 et seq. But there is an essential distinction between the admission of oral extrinsic evidence merely for the purpose of identifying the land described in the writing, if it be a definite description, and adding to a description insufficient on its face. It is one thing to apply the description given in the writing to the land to be conveyed; it is quite another thing to supply a certain description for one vague and indefinite and thus substantially to supplement

the written expression in violation of a fundamental rule of evidence as well as the statute of frauds. The surrounding circumstances may be shown to identify the subject matter, but parol evidence cannot be used to provide a substantive omission in the terms of a written contract. Naughton v. Elliott, 68 N.J. Eq. 259 (Ch. 1905); Muller v. Brautigan, 84 N.J. Eq. 574 (Ch. 1915); Schwartzman v. Creveling, 85 N.J. Eq. 402 (Ch. 1916).

"If the description can be identified by proof of some extraneous fact, that may be done, although, if it be necessary to add a term to the description, that cannot be done. In making this identification we do not go to the oral negotiations, nor to oral proof of what the parties intended. To do this would add to the terms of the memorandum. * * * The description given may be applied by oral proof, so as to ascertain the precise premises conveyed." Gendleman v. Mongillo, 96 Conn. 541, 114 A. 914, 917 (Sup. Ct. Err., Conn. 1921).

The writing should "contain a sufficient description to evidence a common intent of the parties to deal with respect to a particular piece of property as distinguished from other property." Flegel v. Dowling, 54 Or. 40, 102 Pac. 178, 180 (Sup. Ct. 1909). Of course, different considerations apply where cancellation, reformation, or relief against the operation of the writing is sought for fraud, mistake or surprise. Wirtz v. Guthrie, 81 N.J. Eq. 271 (Ch. 1913); Vogt v. Mullin, 82 N.J. Eq. 452 (Ch. 1914); Downs v. Jersey Central Power & Light Co., 117 N.J. Eq. 138 (E. & A. 1934). Vide Pomeroy's Equity Jurisprudence (5 th ed.), sections 857 et seq.

Equity requires a greater degree of certainty in the terms of an agreement submitted for specific performance than is necessary to sustain an action at law for damages. An action at law is founded upon the mere nonperformance by the defendant, and this "negative conclusion can often be established without determining all the terms of the agreement with exactness. The suit in equity is wholly an affirmative proceeding. The mere fact of nonperformance is not ...


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