1 Johns. Ch. 370 | New York Court of Chancery | 1815
I have considered this case with great attention, and I cannot discover any just principle
The bill is founded on an agreement of the 28th of March, 1810, signed by the defendant only, and by which he agreed _ to sell to the plaintiff the land in question, “ upon the following conditions being performed at the times stipulated, to wit, that the plaintiff should pay the defendant 250 dollars within one year; one third of the remainder in one year thereafter; one third in the next year; and the balance in the year following, with interest, annually, upon all sums unpaid from the date; and upon his complying with the above payments, with the interest, at the respective times for that purpose above mentioned, the defendant agreed to give a deed; but if he should fail in them, or either of them, the agreement to be void.” Under this agreement, the plaintiff entered into possession, and made improvements, but he made no payments; and in October, 1813, (and which was above two years and a half after the first default,) the defendant, considering the agreement as void or abandoned, sold the land to another person, and, in February, 1814, the plaintiff filed his bill for á specific performance.
I need not stay to examine how far the objection of a want of mutuality is applicable to this contract, since the decision can be placed with more satisfaction upon the intrinsic merits of the case. But the point being stated by the counsel, I am unwilling to pass it by, without observing that it has been ruled in several cases, (Armiger v. Clarke, Bunb. 111. Bromley v. Jefferies, 2 Vern. 415.,) that a hill for a specific performance will not be sustained, if the remedy be not mutual, or where one party only is bound by the agreement. This doctrine received a very clear illustration, and an explicit sanction, in a late decision by Lord Redesdale. (Lawrenson v. Butler, 1 Schoale & Lefroy, 13.) Though there are other cases in which an agreement has not been deemed within the statute of frauds, and a specific performance has been decreed, when the contract was
There was an express stipulation in this contract, that if the plaintiff failed in either of his payments, the agreement was to be void. The first question that naturally presents itself is, whether the time was not here made part of the essence of the contract, and whether the contract did not become void on the failure of the plaintiff to make the first payment, in 1811. Lord Thurlow is said to have intimated, in Gregson v. Riddle, (cited in 7 Ves. 268.,) that time could not be made of the essence of the contract even by a positive stipulation of the parties, but there was no decision on that point; and in other and later cases, (Lloyd v. Collett, 4 Bro. 469. 4 Ves. 589. n. Seton v. Slade, 7 Ves. 265.,) it has been admitted, that the parties may make the time of the essence of the agreement, so that if there be a default at the day without anyjust excuse, and without any waiver afterwards, the court will not interfere to help the party in default. The case is not analogous to that of a mortgage, where the only object of the security is the payment of the money, and not the transfer of the estate ; and it seems to be conducive to the preservation of-good faith, and the rights of parties, that if a contract of sale is expressly declared to be vacated on non-performance by a given day, that the courts should not interfere, as of course, to annul such a provision. The opinion of Loid Loughborough, in Lloyd v. Collett, contains a strong and decisive argument upon this point. “ There is nothing,” he observes, “ of more importance than that the ordinary contracts between man and man, which are so necessary in their intercourse with each other, should be certain and fixed, and that it should be certainly known when a man is bound, and when
It may, then, be laid down as an acknowledged rule in courts of equity, (and so the rule is considered in the elementary treatises on this subject,) (Newland on Contracts, 242. Sug. L. of Vend. 3d Lond. edit. 268.,) that where the party who applies for a specific performance has omitted to execute his part of the contract by the time appointed for that purpose, without being able to assign any sufficient jus
It may be useful, however, before we come to apply the rules of the court to the facts in this case, to look more particularly into the cases on the subject of relieving parties from delays in performance of contracts for the sale of land.
It was formerly supposed that the time fixed on for the completion of the contract was quite immaterial; and there are some cases which have given countenance to this idea.
The case of Vernon v. Stephens, (2 P. Wms. 66.,) was a bill brought by a vendee for a specific performance after repeated defaults; but in that case different payments had been made and accepted, and further time had been given after each default, by agreement in writing; and the final default, after the last agreement, arose from the death of the original vendor, and a neglect for some time to take out letters of administration, so that the last default was reasonably accounted for ; and the case, therefore, proves nothing in favour of a party in default, without excuse, and without a waiver from the opposite party. The case of Gibson v. Patterson, (1 Atk. 12.,) in which Lord HardwicJce was supposed to have held, that non-performance at the time wap
I do not perceive, therefore, that in the more ancient cases there is real ground for the opinion that the time stipulated for the performance of a contract is of no moment in this1 court, and I am at a loss to conceive how such an extravagant proposition should ever have gained currency. It is certainly, and very justly, exploded in the modern decisions.
In Pincke v. Curtis, (4 Bro. 329.,) the suit was by the vendor for a specific performance, and the plaintiff had failed, for near a month after the specified day, to complete his title; but it appeared that the delay arose because the title depended upon the event of a chancery suit, and the vendee was apprized of this cause of the delay, and acquiesced in it, and was willing to go on with the purchase, and a performance was consequently decreed. The case is not well reported ; (see the note to Sugden's Law of Vendors, p. 278.;) but these were the true grounds of the decree, and the Chancellor said, that if the vendee had called for the deposit at the end of the time limited for completing the purchase, and had insisted not to go on with the purchase, the court would not have compelled him. The
These were cases of delay on the part of the vendor; but the rule applies equally to both parties, and the purchaser who neglects his part of the engagement, will be left to his remedy at law, (if he has any,) though he may have paid part of the purchase money. He cannot be suffered to lie by and speculate on the rise of the estate. The cases of Spurrier v. Hancock, and of Harrington v. Wheeler, (4 Ves. 667. 686.,) were on bills filed by the purchaser for a specific performance; and, in the latter case, he had paid part of the purchase money; but the bill, in each case, was dismissed, on account of his laches, and trifling and unreasonable delay.
The observation of the Master of the Rolls, in Milward v. Thanet, (5 Ves. 720. n.,) is very emphatical on the subject before us. He observed, that Lord Kenyon was the first who set himself against the idea that had prevailed, that when an agreement was entered into, either party might come at any time; and that it was then perfectly known that a party cannot call upon a court of equity for a specific performance, unless he had shown himself ready, desirous, prompt, and eager. Guest v. Hornfray (5 Ves. 818.) is another strong case on the point. Specific performance was there refused on account of the laches of the plaintiff, who was the vendor. Here the purchaser had been put into possession when the contract was made, but
These principles appear to me to be founded in natural justice, and to be equally conducive to public convenience, and to the maintenance of public morals.
I shall cite only one more case, that of Alley v. Deschamps, (13 Ves. 224.,) which was a late decision by Lord Erskine, and which, in all the circumstances of the case, is very analogous to the one now before me. It was a bill in behalf of a purchaser for a specific performance; he
It is impossible not to be struck with the close analogy between that and the case now under consideration. Here the purchaser has paid nothing, but suffered defaults to accumulate, year after year, as if he had forgotten that he was under any obligation to pay; and if the land had not risen in value within the last two or three years, so as to render the purchases an object of speculation, there is no reason to believe that the plaintiff would ever have attempted to raise the money out of the benevolence of his friends. I think that, within the reason and spirit of all the cases, here
The circumstances attending the new agreement between the parties, of the 14th of March, 1812, prove, con- _ clusively, that the original contract was expressly abandoned. This agreement, by which the plaintiff contracted with the defendant to clear off and fence five acres within one year, does not, of itself, import that the original agreement was, or was not, abandoned ; and parol evidence is admissible to explain that fact, which is collateral to the operation of the instrument. Such evidence would not vary or qualify the effect of it; it would only go to repel any presumption, or rebut any equity, which might be attempted to be induced from the instrument itself. But there is another ground on which the parol evidence to which 1 allude is competent. This agreement is stated to have been given in consideration of one dollar, and for various other considerations; and it was admitted by Lord Hardwicke, in the case of Peacock v. Monk, (1 Ves. 127.,) that if a deed, after mentioning any particular consideration, adds, and for other considerations, you may enter into proof of these other considerations; and the same doctrine was alluded to in the case of Maigley v. Hauer, (7 Johns. Rep. 341.) There is no repugnancy, in such a case, between the proof and the deed. It is then proved, in this case, by two witnesses, (James Lynch and Mansel Falcot,) that when the agreement was made, the defendant, by his agent, stated to the plaintiff, that as he had failed in his contract, the plaintiff must sell the land to some other person ; that the plaintiff admitted he could not pay for the land, and that if the defendant would permit him to remain on the land for one year, he would then abandon the same, and give up the possession; and, as a consideration for continuing on the land for the year, he would clear and fence five acres ; and that the writing was given for that purpose. In addition to this testimony, we have that of Josiah Hills, who states, that in
Decree accordingly.