Citation Numbers: 94 N.J. Eq. 440
Judges: Bergen
Filed Date: 3/5/1923
Status: Precedential
Modified Date: 10/16/2022
The opinion of the court was delivered by
This hill was filed by the complainants Bernard Korflage and Bernard Mammes against Henry Kahrs, Bernard Wessels, Paul Rosen; and Emmanuel Scheck, and Henry Kahrs, Inc., a corporation of this state, for the specific performance of an oral contract for the sale of fifty shares of the- common stock
The story told by the defendant Kahrs relating to the oral arrangement was substantially as follows: that at the first meeting October 6th, 1920, they had a conversation about selling the stock and agreed on the price; that he was to go to his New York attorney and talk it over with him and lay out a plan to secure the unpaid balance of $7,200; that he was to talk to his lawyer about the security and the amount of payments and have the papers ready for execution at his office on Monday following, and that they were then to go over the) papers and if everything was satisfactory they would sign them, and it was that night that the $1,300 was paid by the complainant, Korflage, and $1,000 afterwards by Mam-mes; that his lawyer prepared the papers as he instructed him, and he received them on Monday, October 11th; that he telephoned at once to Mr. Korflage, in the forenoon, but did not reach him; that Korflage afterward called him on the telephone when he told him, Korflage, that the papers were there ready for him to look over, and if satisfactory to him to be signed; that Korflage did not come and sign the papers, but went to Europe, and that later Kahrs sold the stock to the defendant Wessels. The contract prepared was put in evidence and is quite different in form from the oral agreement claimed by the complainants. From this testimony it is quite apparent that the oral agreement as stated by the complainant was very different from that testified to by the defendant Kahrs. It is quite manifest that the parties contemplated a written agreement, and the agreement as understood and prepared by Kahrs did not conform to that testified to by the complainant. It is also clear that it was in the contemplation of the parties that the agreement to be made was to be reduced to writing, and that would seem to be quite necessary because the oral agreement as testified to by the complainant provided for a chattel mortgage while that testified to by the defendant did not include any chattel mortgage. Mammes, the other complainant, testified that nothing was said at the first meeting about how they were to pay the balance and that
Vice-Chancellor Van Fleet, in Domestic Telegraph Co. v. Metropolitan Telephone Co., 39 N. J. Eq. 160, said: “Courts of equity may compel the specific performance of a contract which the parties have agreed upon and which is sufficiently certain and definite in its terms to enable the court to see what they meant, but it is entirely beyond the power of any judicial tribunal to make a contract for litigants or compel them to make a contract with each other. Ko specific performance of a contract can be decreed in equity unless the contract be actually concluded and be certain in all its parts. If the matter still rests in treaty, or if the agreement, in any material particular, be uncertain or undefined, equity will not interfere. Specific performance will not be. decreed unless it is shown that the contract has been concluded. ' The bargain must be found completely determined between the parties and its terms definitely ascertained.” The same vice-chancellor, in Potter v. Hollister, 45 N. J. Eq. 508, said: “When, however, it appears that the whole of the subject-matter about which the parties dealt is not embraced in.
What the complainant ICorfiage says about a chattel mortgage being given to secure the unpaid balance is too indefinite and uncertain to .be taken as the definite conclusion of the parties. It may well be that Korflage would have consented to the written agreement as prepared,, although different from what he testified the oral agreement was, but he never executed it. He apparently was in great haste to get away on his visit to Germany and had no further time to- complete and finish the contract. Certainly under the evidence in the present case the parties contemplated a written agreement as the fihal consummation of their bargain, and are at variance as to what the bargain really was, particularly as to the securing of the payment of the residue of the purchase price, Kahrs contending that he was to hold the stock as security while complainant contends that it was to be secured by a chattel mortgage, and in determining the truth as to this point it is quite important to bear in mind that one of the complainants, Mammies, who was present at the time when the alleged oral agreement was made, had'no recollection of anything being said about the chattel mortgage or its terms. Mr. Justice Knapp, in speaking for this court in Brown v. Brown, 33 N. J. Eq. 650, said, "the bargain or promise to be enforced, whether it exists in the form of writing or be merely' verbal, must possess, in substance, and external form, the qualities and requisites of a valid contract.”
The bargain must have been completely determined between the parties and its terms definitely ascertained, and we do
Thé final decree requires the defendants, including Wessels, the subsequent purchaser, to account for the profits of the business from the 8th day of December, 1920, until the date of the decree, and that in such accounting the defendant should be credited with the unpaid balance of the purchase price under the alleged contract, and if it appeared that any balance thereof is unpaid it should be paid as the court should then direct. This, plainly, is the making of a contract by the court for the parties as to the payment of the unpaid balance, without any indication whatever as to the character of the payment, whether in cash, or as the complainant insists, by notés and a chattel mortgage, or any other way, but such as the court shall determine. That the court had no power to do, for if the contract had been concluded the rights of the parties were fixed by it.
The decree will be reversed.
For affirm an ce—N one.
For reversal—The Oi-iiep-Jtjstice, Swayze, Trenchard, Parker, Bergen, Kalisci-i, Black, Katzenbach, White, Gardner, Ackerson, Van Buskirk—12.