90 N.J. Eq. 398 | New York Court of Chancery | 1917
Eor a comprehensive understanding of the question presented the exceptions filed to the,master’s report, the opinion of Mr. Justice Garrison in the court of errors and appeals (85 N. J. Eq. 501), reversing this court (83 N. J. Eq. 494), must be consulted.
Fpon the coming down .of the remittitur the matter was referí ed to a master “to ascertain what will' be a reasonable sum to be paid to the grantor in said deed and Ms assigns for services aird profits on the purchase and sale of said property in view of the services of the grantor and their value to the grantee,’’ and the master has reported the sum at $-1,000, with interest, to which, exceptions are filed. The master measured and determined the amount upon the basis of compensation for the services of the grantor, whereas, according to the view of the court of errors and appeals, he should have ascertained and reported a reasonable sum for the profit of the grantor “in view of the services of the grantor and their value to the gTantee.” While the remittitur is not precisely in the language of the opinion of the court of errors and appeals, its phraseology is such as to permit an inquiry and findings conformable to the directions laid down in the opinion. The supposed variance in nowise interferes with the application of the criterion adopted by the appellate court in establishing the sum to be paid the grantor.
Covenant “two,” providing for the profit of the grantor, was declared extra-statutory solely because the amount to be paid was unliquidated. In its moral aspect it has the approval of the upper court, and percentage as a basis of calculation is not looked upon with disfavor.
A profit of ten per cent, of the gross proceeds of the sales of burial plots was agreed upon by the contracting parties and is to be presumed reasonable, and had thej estimated the probable
The exceptions will be sustained and the matter referred to the master for further investigation and report, in accordance with these conclusions.
Note. — Modified, 89 N. J. Eq. 192.