252 F. 694 | 4th Cir. | 1918
On defendant’s motion the court below dismissed plaintiff’s bill without prejudice, and he appeals. The allegations of his bill may be thus summarized:
Under date of May 24, 1917, both, parties signed a contract, drawn by themselves, by which Anderson agreed to sell to Dixon two apartment houses in the city of Norfolk, Ya., known as the West End and the Panacea, for the sum of $50,000, and Dixon agreed to sell to Anderson, a farm in Beaufort, N. C., with certain live stock and farming implements, lor the sum of $40,000. Anderson did not in express terms agree to buy the farm, nor did Dixon in express terms agree to buy the apartment houses. The concluding paragraph of the contract reads as follows:
"Tliis agreement is written in duplicate, and is signed and agreed to by both of parties named, which is attached hereto and is witnessed. This transfer is to take effect as of December 1, 1917. Tax, interest and insurance to be prorated as of this date.”
About July 16, 1917, Anderson served written notice on Dixon that he would not carry out the contract, and Dixon in turn promptly notified Anderson that he intended to fully perform on his part, and that he expected Anderson to do the same. A few days later, by deed dated July 24, 1917, Anderson, without the knowledge of Dixon, sold the West End apartment to one Fox. On learning of this two or three weeks afterwards, Dixon instructed his representative to ask Anderson whether he intended to carry out the contract; but Anderson again declared he would not, and that he repudiated it altogether. Thereupon, on the 4th of September, Dixon brought this suil for specific performance. Besides the usual averments that plaintiff lias at all times been ready-, able, and willing to fully perform his part of the contract, and that defendant has wholly refused to perform, the bill alleges an agreement between the parties, when the contract was signed, that the price of the West End was $30,000, and the price of the Panacea $20,000. A copy of the contract is filed as an exhibit and made a part of the bill. The prayer for relief is to the effect, among other things, that if the court he without power to compel a conveyance of the West End apartment, because of its sale to an innocent third party, the defendant be required to convey the Panacea apartment, and that plaintiff have a money judgment for the balance due him in that case, according to the agreed values of the respective properties.
“Most of the above cases were actions at law for damages for breach of contract; but we do not perceive that any different rule applies in equity, provided the contract is such a one as equity can and will enforce specifically. In case of such a contract the injured party may elect his remedy; he may either sue at law for the breach, or he may sue in equity for specific performance.”
“If the vendee is willing to accept tbe title contracted for, his rights are unaffected by the outstanding inchoate right of dower of the vendor’s wife. Nor can the vendee be defeated in his right to specific performance of the contract according to its terms by the fact that he may ultimately have to resort to the covenant of general warranty contracted for to protect himself against a claim of dower asserted by the vendor’s wife after the death of her husband.”'
The decree appealed from must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed.
other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes