78 N.J. Eq. 458 | New York Court of Chancery | 1911
There can be little doubt touching the facts. The evidence clearly discloses that at the time the contract was entered into it was complainant’s defined purpose to erect upon the land purchased just such a building as he has now arranged to have erected, that is, a building the first story of which is to be a store and the second story of which is to be a residence. Some effort has been made in behalf of complainant to characterize the first story of the proposed building as a basement for use for storage purposes; but the evidence clearly discloses that the first story is to be constructed with special reference to its use
I also entertain the view that there can be no doubt touching the materiality of the representations. The property in question is in a residential district. The more northeasterly part of Asbury avenue is devoted to business purposes, but the evidence disclosed that the district in question is residential. Defendant’s houses are in the immediate vicinity. It may be, as some of the testimony indicates, that a store is needed in that vicinity; but there is material substance in the objection of the owner of a residence property in a residence district to the establishment of a store adjacent to his residence. Defendant seriously objects to a store being erected adjacent to her residence and entered into the agreement in question in the full belief, induced by complainant, that he would erect a residence, and not a store, on the property which she agreed to sell to him. Whether the building which complainant proposes to erect will cost more or less than other buildings in the vicinity I think immaterial, and I think it equally immaterial whether the building will enhance values in .that neighborhood; for the fact remains that defendant does not desire a store for the sale of vegetables adjacent to her residence, and contracted to sell only in the belief induced by complainant’s statements that the adjacent building to be erected by him would be a residence and not a store building.
Under the conditions named complainant is not entitled to the aid of a court of equity in compelling defendant to specifically perform her agreement to sell. It is one of the necessary inherent qualities of a decree for specific performance that it does complete justice. King v. Morford, 1 N. J. Eq. (Saxt.) 274, 282. In suits of this nature this court will grant its aid or not, according to the justice of the case. Miller v. Chetwood, 2 N. J. Eq. (1 Gr. Ch.) 199, 208. A decree for specific performance will never be made, unless substantial justice will be advanced thereby. Ely v. Perrine, 2 N. J. Eq. (1 Gr. Ch.) 396, 402. “This court will not become an instrument of injustice;
“In maintaining the defence to a suit for specific performance, the knowledge, belief, or intent of the party making the representations is wholly immaterial, and the question is not raised. The point upon which the defence turns is the fact of the other party having been misled by a representation calculated to mislead him, and not the existence of a design to thus mislead.” Pom. Spec. Perf. § 217.
In Baskcomb v. Beckwith, L. R. 8 Eq. Cas. 100, a map was exhibited to the purchaser which was not misleading if examined carefully and which was not intended to mislead, but which was liable to mislead if not carefully examined, and which map did in fact mislead the purchaser; specific performance was accordingly denied.
It is urged in behalf of complainant that a statement, to amount to a misrepresentation, must be the positive affirmation of an existing fact, and not the mere expression of an opinion,
I will advise a decree dismissing the bill.