89 N.J. Eq. 192 | N.J. | 1918
Lead Opinion
The opinion of the court was delivered by
Pursuant to our former opinion in this ease, which is reported in 85 N. J. Eq. 501, there was a remittitur to the court
On exceptions to this report, the vice-chancellor overruled the finding and held that as the covenant was declared by this court to be extig-statutory only because the amount to be paid was un
We think the principle laid down by the learned vice-chancellor, so far as quoted above, was clearly in accordance with our former ruling. We expressly said in the opinion that Smith and his associates were entitled to a fair profit for the services they had rendered; that the profit should bear a reasonable relation to the value of the services; that Smith was in no sense the agent of the cemetery association; that in a sense he risked the cash that he put into the transaction;, that the contract of the parties should be carried out as nearly as the statute would permit, inasmuch as a restoration to the status quo was impracticable ; and that the only legal defect in the contract was the fact that the purchase price, and hence the amount of profit, was not liquidated. Apart from this, no legal or equitable objection was perceived either to ten per cent, on proceeds of sales as a rate of compensation for profit and services, or to its payment in installments as sales were made, the fact that such pajonent should wait on the sales no doubt being an element in fixing the rate. The position taken by the claimants makes it possible to utilize the ten per cent. rate. The plan as agreed on between the parties was to pay ten per cent, of the gross proceeds of sales from- time to time, until the property should be sold out at an expected profit over cost and running expenses. This plan fails because the total amount of the ten per cent, was not ascertained. If it could have been so ascertained when the deed was made, the consideration of the deed would have been that amount payable in installments of ten per cent, of sales as made, which, if turned into cash at the delivery of the deed, would have been the present value of such installments at a proper rate of interest. In either aspect the consideration would have been a lawful one because its amount was known and stated; and in
This results substantially in an affirmance of the order brought up; but that order lacks precision, as it seems to depend for its effect on a reference to the conclusions of the vice-chancellor. A new order of reference should be made in accordance with the views we have expressed.
Dissenting Opinion
(dissenting).
I do not agree with the majority of the court. My view is that the special master was right and that the exceptions to his report in the court below should have been overruled.
In construing a remittitur, or in determining the action to be taken thereon where its directions are incomplete, the lower court should look to the reasons stated in the opinion of the appellate court and be governed thereby. Especially is this true when the remand (as in the present case) is for further proceedings in accordance with the opinion, for in such case the opinion is practically a part of the mandate. Considered in the light of the opinion (85 N. J. Eq. 501), I think that the construction adopted by the special master was right. To find that he was wrong (as the majority opinion does), it seems to me to be necessary to ignore the really controlling passages of the
Obviously, that means that rescission is to furnish the criterion by which the rights of the parties are to be worked out; that since the things which Smith gave, i. e., land and sendees, cannot be restored, he must have their value, not as of the present-time, but as of the time when rendered. Eor reasons set forth in the opinion the court was concerned only with the value of the services. No confusion should result from the use of the words “profit” and “services,” interchangeably in the opinion. The court designated the thing Smith bargained for as “profit” and the thing which he gave as “services,” and pointed out that the bargaining for a profit was legitimate, but the form in which it was cast was illegal, and, consequently, Smith could not have the profit bargained for in the covenant, but must have profits commensurate only with what his services were worth, because he gave services and not profits. Mr. Justice Garrison, in writing the opinion of this court, made jolain the method by which the amount was to be ascertained by saying: “Hence, inasmuch as such sum (of profits) cannot be ascertained from the covenant itself, it must be held by a court of equity to be a reasonable sum in view of the services of the grantor and their value
I am requested by Mr. Justice Black and Judge Williams to say that they concur in these views.
For affirmance — Swayze, Parker, Bergen, Minturn, Kalisch, White, Gardner — 7.
For reversal — Trenchard, Black, Heppenheimer, Williams — 4.