Carskaddon v. Kennedy ( 1885 )

The opinion of the court was delivered by

Dixon, J.

The complainant in this case seeks the specific performance of a contract dated September 7th, 1880, by which the defendant agreed to convey to him, for |50 an acre, about one hundred and fifty acres of la*nd lying in Ocean county between Barnegat bay and the sea.

The defendant resists the prayer of the bill on three grounds: First. Because the contract was not completely made, being signed by the defendant only. Second. Because the contract was obtained by fraudulent representations of the complainant, to the effect that he was acting for wealthy New York capitalists, who would immediately make extensive and expensive improvements upon the property, costing in the neighborhood of $500,-000, to the great advantage of adjoining land owned by the defendant. Third. Because the complainant did not offer to perform his own part of the contract.

The first ground is not tenable. The signature of the complainant was not legally necessary. Browne on Stat. of Frauds §§ 865, 366. The filing of the bill made the contract and the right to specific performance mutual. Richards v. Green, 8 C. E. Gr. 536. And the evidence satisfies us that it was not intended by the parties that signature of the contract by the complainant should be a condition precedent to its obligation.

As to the second ground. The contract, in terms, requires the complainant to expend $10,000 in improving the tract within one year, or, at the expiration of the year, to pay the defendant $5,000 additional price. This clause shows how far the parties intended that the subject-matter of the alleged representations should become obligatory parts of the bargain, but it does not, therefore, preclude the defendant from assailing the contract on account of the representations themselves beyond the limits of the stipulation; it is still permissible for him to prove that the representations influenced him in the negotiation, and that they were made mala fide. The complainant could not be compelled to realize the hopes which his statements had engendered, but it was essential to his bill that he had been honest in his dealings. It is, therefore, proper to inquire whether these representations were fraudulent. The dishonesty of the assertions made cannot be presumed, and we think it is not proved. The evidence indicates that the complainant was acting for others than himself, and there is nothing tending to prove that he had not fair ground for believing them to be such, as he stated, and to have such purposes as he declared. Hence this ground is not established.

The third reason for opposing the prayer of the bill is based on the following facts: The contract fixes the northerly boundary of the tract at the centre line of a block, or the centre line of a street, shown upon an annexed plan, as the one line or the other might be necessary to make the tract contain fully one hundred and fifty acres, the complainant being required to take and pay for any surplus; the bill avers that after the signing of the contract the parties agreed that the tract should be made to contain one hundred and fifty acres, strict measure, the northern boundary to be located without regard to blocks or streets; the answer denies such a subsequent agreement, and the only evidence adduced to establish it is oral testimony; this is legally incompetent to prove a change in the contract as to the land sold (2 Taylor on Ev. §§ 1144, 1145); and the contract therefore remains as it was written. Noble v. Ward, L. R. (3 Ex.) 135. When the complainant tendered to the defendant the balance of the purchase-money, which he was to pay on delivery of the conveyance, he produced a deed to be executed by the defendant, describing the land as he understood it to be according to the oral modification. The defendant .insists- that such a tender was insufficient. - As, however, the defendant placed his refusal to accept the money and execute a conveyance, not on any objection to the description of the land, but solely on the ground that he had been deceived into making the original contract, and was not obliged to perform it, we think the complainant did enough to put the defendant in default, and to warrant the institution of his suit.

The complainant is entitled to specific performance of the written contract.

On the face of the decree and the opinion of the vice-chancellor,, some doubt arises whether it was intended to fix, by the decree, the location of the southerly boundary of the tract according to the surveys heretofore made by the complainant, or to leave the' location to be ascertained by the master, on the reference, using those surveys as evidence, with whatever other proofs the parties may offer. We have concluded that the decree is not necessarily inconsistent with the latter course, which the opinion seems to favor, and which we deem to be proper. We also regard the decree as establishing the rights of the parties according to the articles of agreement, the written contract, unaltered by the alleged oral arrangement.

So construed, the decree is right, and should be affirmed.

Decree unanimously affirmed.