Petrin v. Old Colony Homes, Inc. ( 1947 )

DALY, J.

In the substituted complaint it is alleged that during the month of August, 1945, the parties entered into an agreement in writing, a copy of which, marked exhibit “A”, is annexed to the complaint, “and by the terms of which the defendant agreed to erect and deliver to the plaintiff a house upon a certain plot of land situated in the Town of Stamford for the price of EIGHTY-SEVEN HUNDRED (8700) DOLLARS, exclusive of finished grading and decorating, payable FIVE HUNDRED (500) DOLLARS on the signing of the agreement and the balance of EIGHTY-TWO HUNDRED (8200) DOLLARS by the plaintiff executing a first mortgage in that amount, application for which was to be made by the plaintiff immediately.” It is interesting to note that the only description of the location appearing in exhibit “A” is as follows: “. . . attached on Lot 30, Glendale Park”. It is further alleged that “the plaintiff paid to the defendant the sum of FIVE HUNDRED (500) DOLLARS, . . . which sum is still retained by the defendant.” It is also alleged that the defendant has refused to carry out the agreement and has repudiated it.

The plaintiff filed an amendment to the substituted complaint in which it is alleged in paragraph 3A that “It was further agreed between the parties that -the payments were to be made by the lending institution in installments as the work of construction progressed according to the standard practice customarily employed by lending institutions in and about said Stamford in such manner so that the entire amount of Eighty-two Hundred (8200) Dollars was to be paid over to said defendant, upon completion by it of its contract as aforesaid, all of which terms were known to and assented and agreed to by said Kelly, as agent aforesaid.” Thereafter, upon the defendant’s written motion, it was ordered upon November 7, 1946, that the plaintiff file in court within ten days “a copy of such agreement or agreements as are alleged in paragraph 3A of the Substituted Complaint and are in writing.” The plaintiff has failed to file any written agreement in accordance with said order. Therefore, the alleged agreements set out in paragraph 3 A of the amendment to substituted complaint cannot be treated as written agreements.

In a substituted demurrer the defendant has demurred to the substituted complaint as amplified and amended by exhibits A, B, and C and by paragraph 3A of the substituted complaint and as further amplified by plaintiff’s statement in re motion for oyer, because the Statute of Frauds requires that all material terms of an agreement relative to the sale of real estate should be stated in writing and be signed by the party to be charged therewith or his agent. In the demurrer it is also stated that the agreement alleged fails to satisfy the requirements of the Statute of Frauds and also fails to be definite and certain enough to constitute any kind of a contract because of the reasons stated in paragraphs 1 to 12, .inclusive, of the demurrer and because of the matters pointed ouit in said paragraphs the agreement described in the complaint is too indefinite, vague, uncertain and incomplete to satisfy the requirements of the Statute of Frauds or to constitute an enforceable contract.

The demurrer is sustained upon all of the grounds stated therein.