In order to prevent fraud our statute of frauds provided "that no action shall be brought upon any contract for sale of lands * * * unless the agreement 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." *Page 222
In this case the defendant is sued upon an alleged oral contract (which she denies making) to pay an additional consideration for the entering into and performance of a contract in writing by the plaintiff with a third person for the sale to the latter by the plaintiff of certain land for a definite price, all of which price such third party paid when the conveyance passed, in accordance with the written contract. If there ever was a case falling within both the terms and the purpose of the statute it is this one.
It is said, however, that as the courts will not permit the statute to prevent frauds, to be so applied as to work fraud, the defendant will be held liable on her verbal promise. admittedly void when made, because, subsequently, the third party with whom the written contract was made, accepted a conveyance in pursuance of, and in exact accordance with, such written contract, and paid the full price therein specified, and this although it is not claimed that defendant benefited in any way from, or was a party to, such conveyance, nor to the acceptance thereof.
For the reasons stated in my concurring opinion in Birch v.Baker, 85 N.J.L. 660, I dissent from this view. In that case the conveyance was made at defendant's request in performance of a perfectly valid written contract signed by the defendant to procure the making and delivery of just that conveyance, and, consequently, the defendant was in the same position as if the conveyance had been made to and accepted by him. Here there is no such situation, and, consequently, the principal established by that decision is not, in my judgment, decisive of this case.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, KALISCH, BLACK, KATZENBACH, HEPPENHEIMER, ACKERSON, VAN BUSKIRK, JJ. 10.
For reversal — WHITE, J. 1. *Page 223