66 Vt. 361 | Vt. | 1894
This is a cross-bill for the specific performance of that part of a contract between the parties that provides for the dismissal of the original bill. Counsel agreed, and the court consented, to hear this matter before proceeding further with the main case.
The then next term of the Court of Chancery in Grand Isle County was in February, 1891, so that by the terms of said contract the original bill in this case was to be dismissed before the Noyes case was to be tried. But the bill is still pending. Nor was the Noyes case tried as stipulated, but is still pending. Just before the 18th of June, 1891, Landon, by his solicitor, notified Burton that he should not perform said contract on his part, and he has ever since refused to perform it. This action was taken on the paid of Landon because Burton had told Landon’s solicitor that he thought it was doubtful whether he could make Noyes’s estate account to him for more than the amount it actually received for the farm, and because the solicitor could not see, if Burton thought so, what motive he could have in carrying out said contract in good faith, but thought his motive would be the other way. We do not think, and it is not really claimed, that this entitled Landon to withdraw from the contract. It does not appear to have been anything but the expression of an opinion, and does not show that Burton did not intend to go on in good faith under the contract.
The defendant’s principal claim is that said contract is, in effect, an agreement to arbitrate, and, as such, goes to the root of the main case, and if executed, would entirely oust the Court of Chancery of jurisdiction thereof, and therefore is non-enforcible, both at law and in equity. Wood v. Humphrey, 114 Mass. 185. But it is obvious that the contract is not of that character, but is, in legal effect, a contract for the settlement of the suits then pending between the parties; and being such, it is enforcible if a case is made to warrant it. Richardson v. Eyton, 2 DeG. M. & G. *79; Pryer v. Gribble, L. R. 10 Ch. App. Cases, 534.
It is a general rule that the court will not compel the specific performance of a contract unless it can execute the
If it can be said that the yontract in question provides, in effect, that the difference between the value of- the farm and what it was sold for shall be ascertained by a jury in Chit
The contract is somewhat uncertain as to when Burton is-to pay Landon his half of that difference; whether when final judgment is rendered in the Noyes case, as one clause of the contract provides, or when Burton is paid that difference by Noyes’s estate, or it is allowed to him in his account therewith, as another clause provides. But Burton construes the contract to be that he sha-ll pay when final judgment is rendered in the Noyes case, and in argument waives, in effect, all right to longer delay payment, which obviates any difficulty arising from this uncertainty.
Time, in this contract, we do not regard as essential. In equity, time is not generally regarded as essential unless the parties have made it so or it is necessarily so from the nature and circumstances of the contract. Neither of these things exist here.
But although time is not essential, it is material, and specific performance will not be decreed if the party asking it has unreasonably delayed to insist upon the contract or to perform it on his part. This brings us to consider whether Burton is in fault in these respects.
As to going on with the contract, the agreement was that the parties should go on together, and from the fact that Burton paid Landon’s solicitor fifty dollars and something more as and for expenses in looking up testimony, it would seem that the understanding was that the solicitor should go ahead in the matter, and it appears that Burton was ready to go along with him and insisted from time to time upon going along, up to the time said solicitor gave him notice that Landon would not abide by the contract. Thus is-Burton’s delay up to this time accounted for, and, in the cir
As to insisting upon the contract after Landon’s refusal to perform. This cross-bill was brought on January 23, 1892. On the 6th of said January the orator therein filed a motion before the chancellor, setting out the contract, and asking for a dismissal of the original bill as therein provided. It appears from the testimony of Mr. Adams that said contract was before that time brought to the attention of the court, but it does not appear how, nor clearly when, but it would seem from what Mr. Adams says that it was at the August term, 1891, of the court in which the main case was pending, and it was subsequently mentioned between the solicitors of the parties, but it does not appear just what they said about it. It is considered, therefore, that there was not such neglect to insist upon the contract, nor such delay in applying to the court for a specific performance of it, as to disentitle the orator to its execution.
There being, then, no obstacle in the way of specific performance,
The decree appealed from is reversed and the cause remanded, with directions that there be a reference to a special master to ascertain and report the difference, if any, at the time in question, between the value of the farm mentioned in the pleadings and the price at which it was sold, namely, five thousand five hundred dollars, and that on the coming in of his report it be declared that the contract in the cross-bill mentioned ought to be specifically performed and carried into execution, and to order and decree accordingly, and that the matter of costs below be there determined.