Leonce P. DURAND, Jr., and Florence A. Durand, Plaintiffs,
Henry E. SNEDEKER, Vera E. Snedeker, Thomas C. Snedeker, Elizabeth S. Foraker and Charles H. Foraker, Defendants.
John P. Sinclair, of Berl, Potter & Anderson, Wilmington, for plaintiffs.
Wilfred J. Smith and Frank J. Gentile, Jr., of Smith & Gentile, Wilmington, for defendants Henry E. Snedeker and Vera E. Snedeker.
Bruce M. Stargatt, of Morford, Young & Conaway, Wilmington, for defendants Elizabeth S. Foraker and Charles H. Foraker.
MARVEL, Vice Chancellor.
According to the complaint in this case, on or about April 20, 1961 plaintiffs contracted to buy and defendants contracted to sell some 290 acres of farm land in Red Lion Hundred together with the buildings thereon located, namely, a barn, storage shed and a large dwelling. Defendants Henry E. [40 Del.Ch. 167] Snedeker, Thomas C. Snedeker and their sister Elizabeth S. Foraker are the actual owners of undivided interests in the lands  in question, Vera E. Snedeker having merely a dower interest as Henry's wife and Charles H. Foraker a curtesy interest in the share of his wife, Elizabeth. The complaint alleges that the defendants Henry E. Snedeker, Vera E. Snedeker and Thomas C. Snedeker agreed in writing to such sale on or about April 20, while the defendant Elizabeth S. Foraker, being in Florida at the time '* * * orally contracted, by telephone, to sell her interest in the 'Snedeker Farm' to the plaintiffs, agreed to execute the contract signed by her two brothers when it was mailed to her, and agreed that the plaintiffs could take immediate possession of the farm (but not of the mansion house and other improvements) * * *' It is further alleged in the complaint that '* * * On or about the following day, April 21, 1961, the defendant Charles H. Foraker orally agreed to sell his interest in said premises and agreed to execute said contract of sale as soon as the defendant, Elizabeth S. Foraker, had executed said contract.'
The complaint goes on to state that acting in reliance upon the oral contract of the defendants Elizabeth S. Foraker and Charles H. Foraker and the written contract of the defendants Henry E. Snedeker, Vera E. Snedeker and Thomas C. Snedeker and in the belief that a firm and binding contract existed, the plaintiffs partially performed the contract by making a down payment of $500, and in further reliance upon said oral and written contracts, plaintiffs '* * * with the permission and acquiescence of all the defendants and with the active assistance and cooporation of defendant, Henry E. Snedeker, entered into possession of the farm (but not of the mansion house) and performed * * *' a number of possessory acts, including the building of a road, the performance of certain acts of excavation, the installation of eight machines, each weighing several tons, designed to prepare peas for marketing, the planting of some thirty-five acres in garden peas, and the making of other planting arrangements with tenants then engaged in farming operations on the property.
[40 Del.Ch. 168] The complaint concedes that during the time plaintiffs were engaged in the possessory acts outlined in the complaint the defendants Henry E. Snedeker and his wife Vera continued to reside in the mansion house but that neither of said defendants nor any of the other defendants at any time prior to the filing of the complaint made any objection to plaintiffs' possession of parts of the lands in dispute.
The complaint concludes with an allegation that defendants after agreeing to sell
the lands in question, later repudiated their contract by indicating that they would not perform it on June 15, 1961, the proposed date of settlement, thereby committing an anticipatory breach. Plaintiffs pray that inasmuch as they are willing and able to perform the undertakings agreed to by them in said contract of sale, that defendants be forthwith ordered specifically to perform their part of the contract according to its terms. Alternatively, in the event specific performance should not be granted, plaintiffs ask that damages be awarded them in the amount of $50,000. In an amendment to the complaint an additional prayer is added to the effect that if specific performance not be granted against the non-signing defendant Charles H. Foraker, that such decree be granted against the other defendants without abatement of the purchase price because of the contingent curtesy interest of the said Charles H. Foraker.
The defendants Henry E. Snedeker and Vera E. Snedeker deny the existence of an enforceable contract for the sale of land, contending that during the negotiations up to and including April 20, 1961 it was understood between the parties that a contract of sale would come into being only if all of the defendants were to agree upon the terms of such contract and thereafter execute a contract in writing, and that such was not done. Said defendants contend that even assuming that an oral contract was made by Mrs. Foraker, there was no effective partial performance by plaintiffs. They further claim that if a contract ever existed, it was thereafter rescinded by mutual agreement. Finally, they say that in any event specific performance may not be had against less than all the defendants because [40 Del.Ch. 169] the agreement sued upon contemplated a conveyance of land by all defendants, including Charles H. Foraker.
In their amended answer the defendants Elizabeth Foraker and Charles F. Foraker deny the existence of an enforceable contract for the sale of the Snedeker farm, specifically denying that Mrs. Foraker made an oral agreement for such sale and contending that in any event should such oral agreement be found to exist, that it may not be enforced because of the provisions of the Delaware statute of frauds, § 2714, Title 6 Del.C. By counterclaim these defendants also seek damages against plaintiffs for their alleged improper occupation and use of parts of the Snedeker lands.
The defendant Thomas C. Snedeker failed to appear in response to substituted service, and a default judgment was entered against him on September 11, 1961, said judgment being subject to being reopened upon his answering or moving in response to the complaint within thirty days thereafter. No responsive pleading was thereafter filed by such defendant although he did appear and testify at the trial. In any event, Thomas's failure to comply with the rules and order of the Court presents no problem of substantive law in the case in view of the fact that the two Snedeker brothers and their sister Mrs. Foraker own undivided interests in the lands in controversy and that any effective relief for plaintiffs in the form of specific performance would have to run against all of these defendants.
Section 2714 of Title 6 Del.C. provides in part:
'(a) No action shall be brought to charge any person * * * upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, * * * unless the contract is reduced to writing, or some memorandum, or notes thereof, are signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing * * *.'
The purpose of the statute is explained by its title, namely to afford protection against fraud not only in the type of transaction described in the language above recited but also in a number [40 Del.Ch. 170] of other listed transactions omitted from the above quotation. Nonetheless, actual part performance ...