[46 NJSuper Page 224] Defendants move for summary judgment "on the ground that there is no genuine issue as to any material fact and that defendants are entitled to judgment
as a matter of law." The action is by a vendee for specific performance of an agreement for the sale of certain real property, inclusive of a business consisting of a "milk bar," situated in the Township of Union. Defendants submit no affidavits; plaintiff does. The issue for the court thus devolves into the question as to whether or not, assuming the truth of all of the facts, and of any fair inferences therefrom, set forth in the affidavits relied upon by plaintiff, judgment must nevertheless be entered for the defendants as a matter of law. Defendants' position is based upon the statute of frauds (R.S. 25:1-5) in that the only writing relied upon by the plaintiff is not signed by the defendants or by any other person authorized so to do on their behalf.
The following factual situation emerges from the affidavits filed by plaintiff. On March 7, 1957 plaintiff was introduced to the defendant Cecil Hughson by a third person as a prospective purchaser of his milk bar, known as "Forsgate Milk Bar," and of the real property upon which it is conducted. On March 10, 1957 plaintiff brought his wife to inspect the property, and on March 11, 1957 plaintiff and the defendants "shook hands" at the home of the latter on an arrangement calling for a purchase price of $65,000, payable $12,000 down and $53,000 by mortgage payable in monthly installments over a 15-year period, settlement to take place April 1, 1957. Plaintiff had first been permitted to examine the books of account of the business after tendering a $100 check "as a binder, to show our good faith." The only condition to be met was approval of the deal and release of a purchase option by Forsgate Farms, in Jamesburg, New Jersey.
On March 16, 1957 the parties met, went to Jamesburg and procured the necessary concurrence by Forsgate Farms. The same day they went to the Hughson home, and the defendant Verna B. Hughson, wife of Cecil, "typed up on her typewriter the memorandum of our agreement and we all shook hands." The memorandum, which was not signed by any one, reads as follows:
"Selling to Andrew J. Kufta one hundred fifty (150) feet on Morris Avenue, one hundred twenty five (125) feet on Lehigh Avenue, ground, building, lock, stock and barrel. Price Sixty-five thousand (65,000) dollars, down payment twenve (sic) thousand (12,000) dollars, balance to be paid in fifteen years or less at five per cent (5%) interest, payable monthly plus monthly payment on taxes.
Date for settlement, March 30, 1957.
Life insurance to cover mortgage.