Huffman v. Hummer ( 1866 )

The Chancellor.

This suit is for the specific performance of a contract to convey lands.

The contract was in writing, signed and sealed by both parties, dated October 6th, 1864, to convey the lauds on or before the first day of April then next; part of the consideration was paid, and the complainant put in possession of the premises; he had made improvements, and cut wood and timber, and done other acts of ownership. The price to be paid was one hundred dollars per acre. One of the two tracts is stated to be, “ that part that came off the Stout farm, north of the lime quarries ■ the line is to run ten paces north of said quarries; to all the land between the mill road and Euphemia Philhower’s laud on the west, and her line on the north, supposed to be about eighteen acres.” The boundaries on the north and east and west, are certain and definite. The lime quarries on the south are part of the tract which the defendant reserved, and a dispute arose between the parties about the location of the line described in the agreement, “to run ten paces north of said quarries.”

In February or March, 1865, the complainant had this line run by a surveyor, in the absence of the defendant, who was sent for, but being absent from home, did not receive notice of the survey. The defendant, when he learned the location of the line, disapproved of it as different from the line in the contract, and meeting the complainant on the 15th of March, in a conversation about the matter, told him that the line was not according to the contract; the complainant insisted that it was, and that he would require a conveyance according to that line; and, according to some of the testimony, said that he would not take it in any other way; but he said to the defendant, on leaving, “ we will settle this some other time.” The defendant made no survey or computation of the quantity ■of land, nor prepared or executed any deed on or before the first of April; the property was encumbered by a mortgage and a judgment, which were unpaid. The agreement required the complainant to pay the price “ on executing of the said conveyance.” Neither party tendered himself ready to perform the agreement on or before the first of April. On the third of April, the defendant agreed to convey the premises to Euphemia Philhower, who paid him four hundred dollars on account, for which he took her note. She knew, at the time, of the contract with the complainant. On the sixth of April, the complainant, having heard of the sale to'Mrs. Philhower, sent his son-in-law to the defendant, and notified him that he was ready, and had been for some weeks ready, to receive and pay for the property, and requested him to convey it. The defendant answered that the conveyance was not ready, and would not be ready; that he had sold the land to Mrs. Philhower. The complainant, without further demand or tender, filed the bill in this cause, having first purchased the mortgage on the property, which was assigned to him.

The difference about the south line arose from the fact that the face of the quarries mentioned in the agreement, and which had been worked from the south, run in a direction generally from east to west, or nearly so, from Mrs. Philhower’s line on the east, until within about one chain of the western boundary or mill road; here they had been worked to some extent for more than a chain north of the general direction of the face of the quarry. The line run by the complainant’s surveyor was ten yards north of the general direction of the face of the quarry, disregarding this part at the west side, and it run through this part, leaving a large portion of it north of the line. The defendant insisted, that the agreement, by its true construction, calls for a line running ten yards north ,of all the quarries.

The defendant resists the claim for specific performance on these grounds:

1. That the agreement applied to the premises, is ambiguous and uncertain.

2. That, if his construction of it is correct, the complainant, by the notice given in March, that he would not perform it except as he construed it, discharged the agreement.

3. That complainant was guilty of laches in not tendering the money and demanding a deed on the first day of April.

1. As to the ambiguity. I have no doubt that the word quarries, here means the face of the quarries; it is the usual meaning of the word as applied to quarries opened and worked, and the other parts of this contract show that the word was used here in that sense. It is more difficult to determine what is meant by “ a line to run ten paces north of the quarries,” when the face of the quarries is not only jagged and irregular in the part having a general direction from east to west, but near its western terminus runs for three times ten paces north of the line of general direction. But the object of these words in locating that line, was to reserve to Hummer all his lime quarries, and ten paces north of the face as then quarried, for future use. This cannot be effected by adopting a line that will pass south of the face of any part.

The language, “the line,” in such connection, means a straight line, one line, and not many lines. In this case, a line drawn from a point ten paces north of that part of the face of the quarry near the mill road, which extends the furthest north, to a point ten paces north of the face of the quarry, at its eastern extremity, near Mrs. Philhower’s line, will answer both the language and the object of this description ; it is the only line that will, and therefore is the line required by the agreement. I am, therefore, of opinion that this contract is not void for uncertainty.

2. Although this construction is not the one put upon the contract by the complainant in his interview with the defendant, on the '15th of March, I do not think that he is barred of his remedy in this suit, by what was then said. A written contract, especially one required by statute to be in writing, cannot be waived or discharged by parol, at law, nor, in general, in equity. But in equity, this case is one of the exceptions to that rule. When the complainant has, by parol, waived or discharged a contract, and the defendant, by such action, has entered into obligations inconsistent with its performance, it is an equity that will bar the remedy by specific performance. Fry on Spec. Perf., § 693; King v. Morford, Saxt. 274; Stoutenburgh v. Tompkins, 1 Stockt. 332; Stevens v. Cooper, 1 Johns. C. R. 429; Baldwin v. Salter, 8 Paige 473; Backhouse v. Mohun et al., 3 Swanst. 434, note.

But such parol waiver or discharge must be clear and explicit, and proved beyond doubt. In this case, the conversation on March 15th, relied upon as a waiver of the contract, was not intended as such, and cannot be so construed. The •complainant insisted on his construction, felt certain and positive that he was right, and avowed his intention to adhere to it, and not to perform the contract otherwise. Taken by itself, it was no discharge or waiver; but when accompanied by the words which the defendant himself testified were used by the complainant at parting, “we will settle this.some •other time,” it is very clear that it was not intended as a •discharge of the contract, and was not received as such. Few contracts would stand in this court, if such an insistment in the negotiations about their execution should be held to discharge them. Fry on Spec. Perf, § 698.

3. The laches in this case is not such as will defeat the remedy. It may be well doubted if there was any laches at all. The defendant bound himself to convey, on or before the first day of April, the complainant to pay, on the deed being executed; until the deed was properly executed, he was not bound to pay, or to offer to pay. He was then not in default at law on his contract. But equity requires that a complainant, seeking for specific performance, should have shown himself ready, anxious, and eager to perform his part; but in this case there was no laches of the complainant.

Any further tender of the money, or readiness to perform, was dispensed with by the answer given by the defendant to the complainant’s agent, on the sixth of April; he said he would not convey the land, and had sold it to another.

There was no laches in bringing suit; the bill was filed in fifteen days, not more than the time proper to be taken by careful counsel in preparing a bill in such eases.

There must be a decree for specific performance, and a reference to a master to ascertain and settle the boundaries, the quantity of the land, and the amount to be paid above the sum already paid, and the encumbrances.