48 N.J. Eq. 120 | New York Court of Chancery | 1891
This is a bill for the specific performance óf a parol contract for the surrender of a lease.
Mrs. Borden, the complainant, her sister, Mrs. Van Leer, and her brothers, Asa Curtis, Abraham O. Curtis, and Henry A. Curtis, one of the defendants, were children and heirs at law of ■Osborn Curtis, who died intestate in September, 188'6, seized of ■considerable real estate. One parcel of this, a store-house and yard, had been leased by the decedent to the defendants, Henry A. Curtis and William T. Conover, as partners in trade, for the term of ten years from December 31st, 1885, at the yearly rent •of $520.
After the death of their father, the heirs above named made a
There was no formal surrender of the lease, and the prayer off the bill is, that the defendants may be decreed to specifically perform the agreement.
A demurrer to the bill was overruled, as reported in 1 Dick. Ch. Rep. 468. The defendants then answered, and by their several answers denied the allegation that there was any agreement-made by eitherof »them-that the lease held by them should be-surrendered, or that It ever was surrendered, either expressly or by implication. They allege that rent accruing under it has been regularly paid ever since the partition to Mr. Van Leerlas the agent of his wife and of the complainant, and that these rents had been apportioned between the complainant and Mrs. Van. Leer..
At the hearing it appeared that the decedent died in September, 1886, possessed of considerable personal estate, besides-realty, and that on the 21st of February, 1887, the defendant. Henry Curtis filed his bill in this court against his brothers and' sisters for a partition of the real estate of which their father died seized, and which consisted of several parcels; and that on March 21st, 1887, before the proceedings had progressed beyond the return of process, the defendant Henry, his brother Abraham, and his brothers-in-law Borden and Van Leer, each acting for their respective wives, met for the purpose of arranging an amicable partition, and, as a preliminary step, agreed upon values to-be fixed upon the several parcels of land for the purposes of the partition.
Several of these parcels were situate on two sides of a block in Manasquan, and included the corner store-house leased to and occupied by the defendants under the' lease of December 31st,
The next morning, March 22d, the four persons above named met, and the defendant Curtis made his choice, faking the parcel' of land situate in the rear of the corner store and including a
Up to this stage of the affair there does not appear to have been any understanding among the other four tenants in common :as to how the remaining four shares should be allotted as between ■them, as indeed there could not have been. They at once, how-over,. made an allotment among themselves and Asa Curtis, who was absent in Florida (subject, however, to his approval), and proceeded to carry it out by preparing prpper releases, dated on that day but executed subsequently, The premises adjoining the ■corner store on its side, with a part of the yard under the lease, fell to the complainant. The corner store covered by the lease in question fell to Mrs. Van Leer; and her husband swore that before the deeds were delivered he.spoke to the .defendant Curtis •about the-rent, and-that, he agreed to pay rent for the store alone to Mrs. Van Leer at the rate fixed in the lease for the store and yard. At the same time Mr. Van Leer was occupying, as a tenant from year to year, the lot chosen by Henry Curtis, and he agreed with- Henry to continue his tenancy on the same terms. Both Van Leer and complainant swear that there never has been ;any arrangement between them by which complainant received -any share of the rent-of the corner store by reason-of-her ownership of a part of the yard, and no part of it has in fact ever been received by her. ■ On the contrary, Mr. Van Leer has ever since ■collected it on behalf of and as agent for his wife. The defendants swore-that they thought that Mr. Van Leer was receiving it as agent for his wife and the complainant, to whom was -■allotted the parcel adjoining the store, including a part of the yard, but I find no warrant in the evidence for this supposition ■on their behalf.
In the meantime the defendants and their under-tenants continued to use the entire yard much as they had been doing previous to the partition. In fact, such use had always been more
Upon a consideration of all the evidence, including the manner of the witnesses on the stand, and the circumstances and nature of the transaction and the probabilities of the case, I have-come to the conclusion that the weight of the evidence upon the disputed question of fact is decidedly with the complainant, and that the defendant Curtis did agree and undertake, as part of the partition agreement, that the firm of Curtis & Conover would1 release the part of the yard attached to the lot afterwards allotted to the complainant from the effect of the lease held by the firm, and that all parties acted on that basis, but that the proofs fail to show, by competent evidence, that Conover actually agreed to-that arrangement, and that afterwards defendants paid to Mr. "Van Leer, as agent for his wife, who had become the owner of the leased store-house, the rent reserved in the lease, and that, such payment was for rent for the store-house alone, and that they were not justified by the facts in supposing that they were paying it to her husband as agent of his wife and of complainant.
Henry A. Curtis joined with his brothers Abraham and Asa. and his sister Mrs. Van Leer in the deed to the complainant for her share, including, of course, -the land here in controversy,, without any reservation of any right under the lease.
Upon this case complainant’s counsel makes three points.': First. That the lease, being then and still partnership assets, the contract so-made in relation to it by one partner is binding on both, and that complainant is entitled to relief against both.
With regard to the first position, I shall' assume that if an action of ejectment were brought by the defendants against the complainant, founded on the lease, to recover possession of the part of the premises covered by it and included in the release from Henry A. Curtis to the complainant, they could not recover. The release would be a bar. Freem. Co-ten. & P. § 179. But the question still remains, wdiether Conover would not be entitled to relief in this court against the effect of his partner’s release, on the ground, first, that the act was not within the scope of his authority as partner, and, second, that the release was intended by the parties, to convey only the title which he derived by descent from his father, and not that which he derived by the lease from him. The lease in this case was and is undoubtedly a partnership asset, and, as such, is subject to the disposition of each member of the firm when acting in good faith within the scope of his authority as a partner. That authority is one of agency, and is limited to the partnership business. Lind. Part. *124; *126. Here the transaction was one quite outside the partnership affairs and concerned only the individual interests of the one partner, and was known" to be such by the parties dealing with that partner. For this reason I feel constrained to hold that this court should protect Mr. Conover from -the effect of the release, and must refuse to enforce against him
. As to the subsequent conduct of the defendants in paying the whole rent, without apportionment, to Mr. Van Leer, while it .furnishes corroboration of the truth of complainant’s allegation that the contract in question was actually made, still I am not satisfied that it furnishes sufficient ground for enforcing that •contract against Conover. In this connection it must be borne in mind that no change was made in the actual use of the leased premises. The principal part of the stabling was on the premises allotted to the defendant Henry, and the use of the yard .allotted to the complainant was of little value and consequence to the defendants, except for light and air. Moreover, it may be well supposed that Conover paid little attention to the details of the payment of rent and its destination.
On the third point, however, I think the complainant is entitled to relief, if it be competent for this court to give it. And .here arises, as it seems to me, a very nice question of equity jurisdiction and practice not yet thoroughly and authoritatively .settled in this state.
Beyond all question, as it seems to me, the complainant was fully justified in any and all aspects of the case in coming to this ■court for relief. She accepted this land as her share of her father’s estate, and parted with her interest in the remaining ■portions of it upon the assurance and in the belief that it was, •or would be, free and clear of all encumbrance, including this lease. She accepted her brother Henry’s assurance that the lease should be surrendered. He now denies that he gave’any such .assurance, declines to procure a surrender, and threatens to stop her from building on the part subject to the lease. It is palpable that the complainant cannot extricate herself from her situation by an undoing of the transaction. She cannot rescind the partition as between herself and Henry alone. This being the' situation, what can she do ? The statute of frauds prevents her from enforcing her rights at law, by recovery of damages, and .she is obliged to come to this court or rest without remedy. So
The case in hand, it must be observed, is something more than a suit for specific performance. It is a suit asking for complete performance by the defendant of a contract already partly performed by him and fully performed by the complainant, and in such manner and to such an extent as that complainant cannot be reinstated in her former position. She has fully performed her part of the contract by releasing to her brother, the defendant, her one-fifth interest in certain lands which he purchased from his brothers arid sisters. The consideration for that conveyance was to be a clear title to her by her brothers and sisters of another piece of land, and in order to complete that consideration the defendant Henry agreed to procure a surrender of the lease in question. The complainant, then, in reality, asks this court to give her the stipulated consideration for the land she has conveyed, and it appearing, after suit brought in good faith, that she cannot have that consideration in specie, she asks for its value in money.
An examination of the authorities and cases most nearly resembling this seems to me to sustain her claim. In this state we have the early cases of Cooper v. Wells, Sax. 10, and Berry v.
In the two New Jersey cases the contracts wer.e in writing, but were not,"under the peculiar circumstances, enforceable at law. In t.he two New York cases the contracts were by parol. The later cases of Hatch v. Cobb, 4 Johns. Ch. 559, and Kempshall v. Stone, 5 Johns. Ch. 194, are supposed to' indicate that Chancellor Kent had receded somewhat from his position in the earlier cases, but an 'examination of the later cases shows, as I think, the contrary. In both cases the contracts were in writing, and in the first — Hatch v. Cobb — the complainant’s laches destroyed his equity, and the second case was a bald attempt to sue in equity for damages under the guise of' a bill for specific performance, when the complainant had an adequate remedy at law.
In 1839 Vice-Chancellor Hoffman, in Wiswall v. McGowan, Hoffm. Ch. 125, examines the subject and all the cases to that date, arid states his conclusions thus:
“A review of these decisions leads to this result: that whenever the inability to fulfill a contract arises before the bill is filed, whether produced by a party himself or not, and is known to the complainant, a bill cannot be sustained for damages only. If such inability is caused by the act of the party after the suit has commenced, relief may be given; and also if the act is unknown to the complainant when he sues. If specific performance can be decreed as to a part, and the party has put it out of his power to fulfill the contract as to the residue by an act done since the agreement, the court will decree for that part, and assess damages for the residue. And lastly, where the remedy is lost, or very precarious at law, and the complainant has an equitable case, the court will assess damages in his favor,” and he decreed for partial performance and compensation in that*131 ■case. His decree was reversed on appeal, but not in such a manner as to disturb the principle so laid down.
Chancellor Walworth, in the still later case (1844) of Morss v. Elmendorf, 11 Paige 277, refused compensation upon a consideration of the circumstances of that case, but (at p. 288) says : ■“ Where the defendant deprives himself of the power to perform the contract specifically, during the pendency of a suit to compel such performance, this court may very properly retain the suit ••and award to the complainant a compensation in damages, to ■prevent a multiplicity of suits. And I am not prepared,to say that such a decree might not be proper where the defendant had ■deprived himself of the power to perform the contract prior to the filing of the bill, but without the knowledge of the complainant, or even where he never had the power to perform, if the ■complainant had, filed his bill in good faith, supposing at the time he instituted his suit here that a specific performance of the contract could be obtained under the decree of this court. But this court does not entertain jurisdiction where the sole object of the bill is to obtain a compensation in damages for the breach of a contract, except where the contract is of equitable cognizance .merely.”
In 1870 the question received thorough discussion and great •consideration in Massachusetts, in the case of Milkman v. Ordway, 106 Mass. 202, which resulted in a decree in substance the same as that asked for here, viz., compensation instead of performance. The opinion of Wells, J. (at p. 253), state's the rule thus: “ It is settled, with little or no conflict of authority, that where a defendant in a bill in equity disenables himself, pending the suit, to comply with an order for specific relief, the court will proceed to afford relief by way of compelling compensation to be made; and for this purpose will retain the bill and determine the amount of such compensation, although its nature and measure are precisely the same as the party would otherwise recover as damages in an action at law. The character of the investigation is therefore not an insuperable objection to this mode of proceeding.
“ There is also authority, though apparently questioned in the
“ In the opinion of a majority of this court, there is equal ground in equity for applying the same rule, with the same qualifications, to all cases where a defect of title, right or capacity in the defendant to fulfill his contract is developed by his answer, or-in the course of the hearing, or upon reference of his title or-capacity, after an order of fulfillment. * * * The jurisdiction is fixed by establishing the equitable right of the plaintiff. Relief might then be given by a decree in the alternative, awarding damages, unless the defendant should secure the specific performance sought. In many cases this would be an effective and proper-course, inasmuch as the defendant, although not having himselfj. at the time, the title or capacity requisite for such performance,, might be able to procure it otherwise. The jurisdiction is not lost, where the court, instead of such alternative decree, determines to proceed directly to an award of damages or compensation. The peculiar province of a court of chancery is to adapt its remedies to the circumstances of each case as developed by the-trial. It is acting within that province when it administers a> remedy in damages merely, in favor of a plaintiff who fails of other equitable relief, to which he is entitled, without fault on his own part. The diversity of practice in this respect, and the-doubt as to the jurisdiction, we think must have arisen less frorm the nature of the relief to be afforded than from the character-of the means for determining the amount of compensation to be-rendered.” The learned judge then proceeds to support his view by such an exhaustive examination of all the cases to that date-as renders notice of them here unnecessary.
The question was considered in this state by Vice-Chancellor Van Fleet in Peeler v. Levy, 11 C. E. Gr. 333, and in Ludlum v. Buckingham, 8 Stew. Eq. 71. In the headnote of the first
In the second case, Ludlum v. Buckingham, he states the doctrine thus: “ In actions for specific performance, it seems to be ■settled that where the defendant has, pending the suit, deprived himself of 'the ability to perform, or where he has, before suit, disabled himself to perform, without the knowledge of the complainant, and the complainant brings his suit in good faith, believing that the defendant can perform a decree for specific performance, or where the complainant establishes a case clearly showing that he is entitled to equitable relief, and it appears that he has no remedy at law, or that his legal remedy is precarious, equity, although it cannot enforce specific performance, will nevertheless retain jurisdiction, and give damages or compensation, either by estimating them itself, or by awarding an issue' of quantum damnificatus. And it has also-been held that equity should not take jurisdiction in any cáse in which it appears that the defendant has deprived himself of the ability to perform in advance of the institution of the suit, and this fact was known to the complainant When he brought his suit, for in such case, it is said, the complainant knows when he sues that he cannot have actual specific performance, and that his suit is simply a suit for damages.” He then proceeds to cite, with approval, the doctrine of Milkman v. Ordway. He, however, refused relief in that case on other grounds. "The court of errors and appeals, in reviewing this case of Ludlum v. Buckingham in 12 Stew. Eq. 563, expressly refrained from either ap
In applying it to the case in hand I find but one consideration-which can be urged against complainant’s relief, and that is, that she knew before suit brought that .defendant Henry A. Curtis-could not perform his contract without the concurrence of his-partner; and the general rule undoubtedly is, as above stated1, that where the complainant sues for specific performance; and knows before bringing suit that such performance cannot be had' even in part, the alternative by way of compensation, will not be granted. But it is plain that the case in hand is not within that1 rule for several reasons. In the first place, the suit is against both partners upon the basis of a contract made by both, and is therefore distinguishable from a case where the suit is brought against a party asking him to convey a title which he has not. But waiving that, still the restriction in question does not properly apply, and in fact has not been applied, unless through oversight in some excejrtional instanco, to cases where the complainant has a clear equity and no adequate remedy at law. In the-second place, the failure to establish the contract as against Con-over was not, as before remarked, to be anticipated by the com
One word as to the nature of the compensation to be awarded. It must not, and will not, be in the nature of. damages, but be confined to the difference in value between the complainant’s lot subject to the encumbrance of the lease and free from it. The distinction between such compensation and damages in the strict sense of the word is clear, and was illustrated by Lord Eldon, in Todd v. Gee, 17 Ves. 278, as follows: “ If A contracted to sell B an estate tithe free, and B contracted to sell it to C on the same conditions, and it was found that A could not convey tithe free, he might be compelled by the court to make compensation for the difference in the value of the property, but not for the damage
So here, if complainant, relying on the parol contract proven in this case, had commenced the erection of a building on the laud in dispute and had been delayed or estopped in it by the defendants, she would have suffered damages which this court would not deal with. ' Difference in value by reason of the encumbrance stands on a different basis, and may be ascertained conveniently by the usual machinery of the court.
I will advise a decree that the defendant Henry A. Curtis do specifically perform his contract by procuring a proper surrender of the lease as to the land included in it and in the deed to the complainant, and unless he dó so, then that it be referred to a master to'ascertain the difference in value of the land subject to and free from the lease. In ascertaining the difference the master will proceed on the basis of there being no rent payable by the defendants to the complainant. I think the conduct of'Henry A. Curtis, in paying as he did all the rent to Mr. Van Leer, puts him in this position.