oral modification of the Development Agreement is ineffective, even if true, because paragraph 6 of that agreement provided:
'6. This agreement may not be modified or discharged in whole or in part except by an instrument in writing signed by both Shoreham and Bush.'
See § 33c, as amended, New York Personal Property Law, McKinney's Consol. Laws, c. 41, and cases cited in the defendant's letter of June 13, which is attached to this Memorandum Opinion. When the Development Agreement (Exhibit A to Complaint) is read with the Construction Loan Agreement (Exhibits A & B to Document No. 28), the burden of supplying the cash of $ 36,111 or completing the work rests on plaintiff.
Cf. New Wrinkle, Inc. v. John L. Armitage & Co., 3 Cir., 1956, 238 F.2d 753, 756-757.
The plaintiff's Affidavit (Document No. 26) indicates that.$ 390,000 of construction loan money was available in the spring of 1955, but the affidavit of the lending company's Vice President that 'at no times were the conditions complied with' (see footnote 5 above) is not challenged by any direct assertions of plaintiff's affidavit (Document No. 26). Plaintiff's affidavit apparently takes the position that the written requirement that $ 36,111 be supplied in cash or work completed was modified with the approval of Colonial Surety Company (the affidavit does not specifically state this) and Mr. Bush. However, there is no showing in the record (a) that defendant (as opposed to its President, and plaintiff does not allege that he was acting with authority or on behalf of defendant -- see paragraph 8 of Document No. 26) agreed to such modification since Exhibit A to the plaintiff's affidavit (Document No. 26) does not state who is to supply the $ 424,611 to be paid for the construction of 48 houses, except that.$ 390,000 of this sum is to be borrowed on a construction loan, or (b) that the lender agreed to such modification. Where a disinterested third person, such as this lending institution, specifically states the conditions of its agreement and a party's (plaintiff's) failure to comply with them, the general conclusions as to them of plaintiff's affidavit (Document No. 26) seems hardly sufficient to negative such specific statements. However, the United States Court of Appeals for the Third Circuit has repeatedly held that the record on a motion such as this is to be considered in order to determine whether issues of fact exist and not to decide such issues. See Krieger v. Ownership Corporation, 3 Cir., 1959, 270 F.2d 265, 270; Bragen v. Hudson County News Company, Inc., 3 Cir., 278 F.2d 615. Out of an abundance of caution, plaintiff will be granted thirty days from this date within which to file a Supplemental Pre-Trial Memorandum, stating specifically its contentions, giving dates and persons involved, as to the oral modification of the following provision of Exhibit A to Document No. 28 (Affidavit of April 27, 1960):
'Cash by owner;
or work completed $ 36,111.00'
If such Supplemental Pre-Trial Memorandum is filed, a preliminary trial may be required on the limited issue of the modification of this provision in the contract formed by Exhibits A and B to Document No. 28.
The vague allegations of paragraph 20 of plaintiff's affidavit (Document No. 26) that $ 65,621 of equity was 'to be furnished over a period of time' cannot negative the definite statement in the affidavit of the Vice President of the Provident Tradesmen's National Bank and Trust Company (Exhibit 3 to Document No. 24) that this amount was to be raised, and all other conditions of the construction financing were to be met, in sixty days from December 1, 1955, and that none of such conditions were met. See, also, affidavit of April 28, 1960 (Document No. 29). See New Wrinkle, Inc. v. John L. Armitage & Co., supra; United States for use of Kolton Elec. Mfg. Co. v. Halpern, 3 Cir., 1958, 260 F.2d 590. In the New Wrinkle case, the court said at page 757 of 238 F.2d:
'* * * since no ambiguity between the provisions of these respective paragraphs is discoverable, the motion for summary judgment rested squarely upon the obvious absence of any genuine issue of fact and called upon the learned trial Court not to construe the meaning of the unambiguous language upon which the justiciable controversy pleaded in the complaint arose, but to decide that controversy upon the provisions of the contract sued upon without the necessity or propriety of considering any extraneous matter, whether issuable or not.'
Also, it is noted that there is no evidence in the record that the plaintiff furnished any financing for the remaining appoximately 80 houses contemplated by the Development Agreement.
The parties, or either of them, may submit an order based on the findings summarized in this opinion in accordance with F.R.Civ.P. 56(d) if the above-mentioned Supplemental Pre-Trial Memorandum is filed. The determination and direction provided for in F.R.Civ.P. 54(b) may be included in the order filed in accordance with this Memorandum Opinion,
unless the Supplemental Pre-Trial Memorandum is filed by plaintiff as specified above (no later than July 17) in a form making this unnecessary.