On appeal from the Superior Court, Chancery Division, Union County.
Furman and Petrella. The opinion of the court was delivered by Furman, P.J.A.D.
[208 NJSuper Page 685] Plaintiff as prospective buyer appeals from summary judgment in favor of defendants in an action for specific performance of a contract between the parties for the sale of commercial
property in Elizabeth. We are constrained to reverse and remand.
In granting summary judgment the trial judge applied the bar of the Statute of Frauds, N.J.S.A. 25:1-5, as a matter of law. N.J.S.A. 25:1-5 provides in pertinent part:
No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized:
d. A contract or sale of real estate, or any interest in or concerning the same;
We reject the holding below. Viewed in the light most favorable to plaintiff, issues of fact were open and unresolved, precluding summary judgment, Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 73-75 (1954). In their response to demands for admissions defendants admitted that an oral agreement to sell the premises was reached between the parties and that all six defendants individually signed a written contract of sale which was drafted subsequent to the parties' oral agreement. The record before the trial judge on motion and cross-motion for summary judgment also included a letter from defendants' attorney acknowledging receipt of the written contract and advising plaintiff's attorney that he had set up an escrow account with the deposit check of $25,000. At the best for plaintiff the oral agreement was memorialized in the written contract signed by all six defendants or in defendants' attorney's letter of acknowledgement of the written contract as agent for defendants.
Factually, defendants retained the written contract signed by them upon communicating that they were not proceeding with the transaction. The trial judge viewed as decisive the nondelivery of that written contract. We disagree.
Delivery of a signed memorandum of an oral agreement is not a precondition for compliance with the Statute of Frauds. As stated in 4 Williston, Contracts (3 ed. Jaeger 1961), § 579A at 121-122:
By hypothesis under the Statute the oral contract is complete as a matter of common law and written evidence of it alone is necessary. Since the memorandum need not itself be a contract and intent to make it is not requisite, it should follow, especially in view of the fact that neither the original Statute, nor its successors, mentions delivery, that a writing retained wholly within the control of the party to be ...