57 Barb. 561 | N.Y. Sup. Ct. | 1865
The first question to be determined is ofie of fact—whether the agreement mentioned in the complaint was executed and delivered, and became a valid, binding contract between the parties. x The defendant admits that he signed the paper, but insists that it does not correctly or fully express the agreement between them; and he' denies that it was delivered as a final and binding contract; but says that it was made and signed merely as a memorandum, from which another and perfect contract was afterwards to be prepared.
The parties, Losee and Morey, have both been exam
The next question is whether the plaintiff is entitled to have this contract specifically executed.
As a general rule, the specific performance of contracts rests in the discretion of the court. It is not, however, an individual or arbitrary discretion, but a judicial discretion, which conforms itself to general rules and settled principles. The right to have specific performance is a positive right, neither to be exercised or withheld capriciously, or simply at will. When all -is fair, and the parties deal on equal terms, it is a universal rule, in equity, to enforce contracts for the sale of lands specifically, at the demand of either the vendor or vendee; and in such case it is as much the duty of the court to decree specific performance of the contract as it is to give damages for its breach. (Willard’s Eq. 280. Story’s Eq. §§ 746, 751. 9 Vesey, 608. 12 id. 395, 400. 3 Cowen, 445. 6 Bosw. 245.) In the last case cited the court remarks that the discretion to be exercised in these cases, “ is governed, for the most part, by settled rules; and where a plaintiff is seeking a relief to which by such rules he is clearly entitled, and no substantial defense to his claim is established, the relief may not be capriciously denied.” It follows, therefore, that if a contract for the sale and purchase of lands has been fairly obtained, without misapprehension, surprise, mistake or the exercise of any undue advantage, and it be not unconscionable in its terms, the right of the parties to its specific performance is a settled and positive right, which the court is bound to maintain and enforce. It is insisted, in the next place, that the case is not of equitable cognizance, because the plaintiff has, as is urged,
The defendant Cramer purchased with knowledge of the plaintiff's right, and therefore took his title subject thereto. That being the case, either the deed to him should be set aside or he should, with- his wife, convey to the plaintiff". (1 Barb. Ch. 273. 5 John. Ch. 225, 231. Story's Eq. § 788. Will. Eq. 269.)
The plaintiff is entitled to judgment for a specific performance of the contract mentioned in the complaint, with costs against the defendants Morey and Cramer. The use of the premises since the plaintiff was entitled to possession should be deducted from the amount of the purchase price agreed to be paid, and the value of such use must be determined on a reference "for that purpose, unless the parties agree upon such value; in which case I can insert it in my finding and decision.
The plaintiff’s counsel will draw up the finding and de
Boohes, Justice.]