Opinion
Decided May 19th, 1930.
On appeal from an order of the court of chancery advised by Vice-Chancellor Bentley, who filed the following opinion:
"On motion to strike out a bill.
"The bill is filed by a vendor for specific performance of a contract for the sale of land. It is complete and regular in every respect except that the same is signed on behalf of the vendors, "Samuel Pesin, Agent." The attack upon the bill is based upon the fact that it shows upon its face, containing as it does a copy of the contract, that no action can be brought upon it because it does not contain the name of the vendor, as required by the fifth section of our statute of frauds as the act has been construed by our courts.
"In my previous attempt to decide this motion I fell into the error of believing that the defect set up by the demurrer was lack of mutuality in the contract; which I overruled upon the mistaken ground that mutuality had been supplied by the filing of the bill by the person whose name did not appear therein.
"I am reluctantly driven to the firm conviction that this motion will have to prevail. It bears every indication of being an attempt upon the part of the vendees to withdraw from a perfectly-understood bargain which no longer appeals to the defendants. But with the law established as firmly and repeatedly as it is, I am left no discretion in the premises. It is trite to say that a defendant is entitled to the preservation of his strict legal rights without regard to the motives which actuate him in relying upon them.
"As far back as Johnson Miller v. Buck, 35 N.J. Law 338, it was established by the supreme court that among other things required by the statute were the names of the buyer and the seller. That case has been repeatedly cited with approval from the time the opinion was published until at least as late as 99 N.J. Eq. (at p. 491). Not only does this decision express the law of this state, but the overwhelming weight of authority in this country and in England. 27 C.J. 276; 25 R.C.L.; Statute of Frauds § 292. Many authorities are collected in 8 L.R.A. ( N.S.) 733, from which it will be found that the rule obtains whether it is the name of the vendor or the vendee which is not disclosed. The rule seems to be that where the contract on its face appears to be one between two parties who are named therein, it may be enforced, and proof, aliunde, may be introduced as to the principal if one of the parties, in truth, acted as an agent. But where the memorandum discloses upon its face that it is signed by one of the apparent parties as an agent for an undisclosed principal, then the memorandum does not conform to the requirements of the fifth section of our statute and is insufficient.
"I have examined with great interest the argument made on behalf of the complainants and it would be unanswerable if the question presented was that of the mutuality of obligation under the contract. That is the confusion into which I fell originally. The difficulty with the argument is that it deals with an equitable rule that has been adopted by this court, whereas the issue to be decided is the statutory construction to be placed upon our act.
"I will confess that I think this subject is somewhat shrouded in metaphysical nicety of distinction, but, as I have already said, is too firmly established in our jurisprudence to permit of any tampering by this court.
"The bill should be dismissed."
Messrs. Pesin Pesin, for the complainants.
Messrs. Lichtenstein, Schwartz Friedenberg, for the defendants.
The order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Bentley.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, BLACK, CAMPBELL, LLOYD, CASE, BODINE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, WELLS, JJ. 14.
For reversal — None.