44 N.Y.S. 482 | N.Y. Sup. Ct. | 1897
The rules by which the discretion of the court is determined in decreeing specific performance are clearly ascertained and firmly, established. ...
“ Specific performance may he granted or withheld upon consideration of all the circumstances,” and it is incumbent on the. plaintiff “to show that under the circumstances it would he an equitable and just remedy.” Miles v. D. F. I. Co., 125 N. Y. 294. “ The contract must he established by competent "and satisfactory proof, which must be clear, definite and certain.” Lobdell v. Lobdell, 36 N. Y. 327; “A decree for specific performance should never be granted unless the terms of the agreement are clearly proved, nor when it is left in doubt whether the party' against whom relief is'asked in fact made such an agreement as
That in the case under consideration there was a misapprehension by the defendant of a term of the contract is not to be doubted on the evidence. When he made his bid he did not suppose that the sale was subject to the unexpired lease; and the mistake was' material, for he bought the property for immediate use. Assuming that the conditions of the sale were promulgated as alleged by the plaintiff, they were not so understood by the defendant; and the circumstances of the transaction are not such as necessarily imply culpable negligence on his part. Possibly the mistake might not afford a defense to an action at law; but in equity it is fatal to the relief of specific performance. Post v. Leet, 8 Paige, 337; Best v. Stow, 2 Sandf. Ch. 298; Rushton v. Thompson, 35 Fed. Repr. 635.
Indeed, here is no contract, the parties not assenting ad idem. “It is essential to the validity of the contract that the parties should have consented to the same subject-matter in the same sense. * * * If there was a misunderstanding between them, there was clearly no contract.” Utley v. Donaldson, 94 U. S. 29, 48. “ The doubt upon the question, as to whether both parties understood the agreement alike, is so great that I think the court ought not to decree a specific performance in favor of either.” Walworth, Ch., in Coles v. Bowne, 10 Paige, 526, 534.
Upon another ground still the plaintiff is not entitled to the relief he solicits. The proof is conclusive that his son attended the auction as a “ puffer,” and submitted bids in competition with the defendant. ' “ The principle upon which the employment of puffers, by the person for whom a sale at auction is made, is dis
Without reference, therefore,- .to other objections urged by counsel for the defendant, I am persuaded that, for the reasons already apparent, it would be inequitable to decree specific performance of the contract in controversy.
Judgment dismissing the complaint on the merits, with costs.
