Pollak v. Dapper

Proskauer, J.

An informal memorandum of sale of real estate signed by the appellant recited the receipt of the earnest money, a description of the property, the price, the down payment to be made upon the signing of a contract, the amount of the purchase-money mortgage to be given “ upon the delivery of the deed the balance purchase money mortgage terms to arrange upon the signing of the contract,” and the time for the execution of the contract. The memorandum is sued upon as an enforcible agreement.

Provision for execution of a formal contract does not defeat the validity of a memorandum apparently complete and intended to be a contract. If this memorandum were silent as to the terms of the mortgage, the law would imply that the mortgage would be payable upon demand and at the rate of interest of six per cent. But it is not silent. It states “ terms to arrange upon the signing of the contract ” and so shows upon its face that there were unsettled terms upon which the parties intended further to negotiate. This memorandum comes within the condemnation of Spielvogel v. Veit (197 App. Div. 804), where Blackmar, P. J., writes (at p. 807): “ But in this case, where the writing, * * * can have no construction under the existing circumstances but as an agreement to place a new mortgage on the premises, it would be absurd to assume that the parties intended the idle formality of a new mortgage immediately due. The fact that they agreed that a contract should thereafter be executed, forces the conclusion that the duration of the mortgage and the rate of interest were left to be settled on the execution of the formal contract. The writing, therefore, is not a complete contract which may be enforced specifically, but a record of the agreement so far as reached, leaving substantial matters to be settled in the formal contract.”

In that case the court had to rely on an inference that there were still terms to be agreed upon. Here no inference is necessary since the memorandum expressly states that there were still terms to be arranged.

The judgment should be reversed, with costs, and the complaint dismissed, with costs.

Dowling, P. J., and McAvoy, J., concur; Merrell and Finch, JJ., dissent.