Larrabee, J.c.c. (temporarily assigned).
Plaintiff Poultrymen's Service Corporation, a retailer of poultry feed and supplies, has instituted suit against the defendants Arthur Baer and Jean Baer, alleged operators of a poultry farm.
Plaintiff sues defendants in six counts. The first count alleges a book account; the second count alleges goods sold and delivered; the third count sues on an account stated. All of these claim $15,606.76 due from the defendants. The
fifth count alleges that the defendants are owners of a 20.4-acre poultry farm and that on February 26, 1960 defendants owed plaintiff $16,111.80 for goods sold and delivered, and on that date in consideration of certain credits and an agreement not then to institute suit, defendants agreed to secure the payment of the account with a mortgage on the farm payable in full in the event of any sale and to be reduced not less than $20 per week; and that the offer was communicated to plaintiff which accepted the same on March 1, 1960, gave the credit referred to, leaving a balance of $15,606.76, and deferred suit.
Plaintiff claims that its position has changed because defendants, who owned a poultry farm to which plaintiff supplied grain and poultry feed, have sold the farm to Louis and Mary Gamberdella; that $17,500 has been held in escrow from the purchase moneys for the purpose of eliminating item 9 re the lis pendens filed by plaintiff from the title policy to be issued to the purchasers; and that the said amount is insufficient since plaintiff's claim is $15,639.21 plus $4,381.11 interest, and will not be available at all if the fifth count is dismissed.
Arthur Baer, in affidavit filed, says that a mortgage was discussed, interest was requested and refused, but credits and adjustments were to be given as part of the transaction, and these were never determined.
Plaintiff asks the court to establish an equitable mortgage lien against the premises in the sum of $15,606.76 with costs.
The sixth count claims that defendants owe $382.58 because of their breach of the agreement to give a mortgage in exchange for the credits given in the amount of $382.58.
Defendant Jean Baer moves to strike the fifth count for failure to set forth a cause of action; Arthur Baer moves to strike the fifth and sixth counts for the same reason.
The defendants argue that the purported agreement is one that creates an interest in real estate within the statute of frauds, R.S. 25:1-5, and consequently is invalid and not a proper basis for a defense.
Plaintiff counters with the contention that the situation is taken outside the statute of frauds by the circumstances of the case, that is, part performance and something more than the payment of money. A number of cases cited are the following: Dean v. Anderson , 34 N.J. Eq. 496 (Ch. 1881); Rutherford Nat. Bank v. H. R. Bogle & Co. , 114 N.J. Eq. 571 (Ch. 1933); Cauco v. Galante , 6 N.J. 128 (1951); Clark v. Van Cleef , 75 N.J. Eq. 152 (Ch. 1908); Joseph S. Naame Co. v. Louis Satanov Real Estate & Mortg. ...