135 A. 69 | N.J. | 1926
This is an appeal from a final decree of the court of chancery dismissing a bill of complaint. The appellant (the complainant *316 below) in June, 1925, was the owner of a tract of land in Madison, New Jersey. On June 4th, 1925, she entered into an agreement in writing, in which her husband joined, with the respondents (defendants below), for the exchange of real estate. The appellant agreed to convey, on or before July 15th, 1925, the tract in Madison, to the Columbia Realty Company, a New Jersey corporation, whose capital stock was owned by the respondents. The respondents agreed to convey to the appellant three tracts of land, two in the borough of Garwood, in the county of Union, and one, referred to as parcel C in the agreement, located in the township of Cranford in the same county. A cash payment of $3,000 was to be made to the appellant by the respondents. The conveyances were made by the respective parties. The appellant received the cash payment.
The bill of complaint alleges that before entering into the contract the appellant was shown, by two of the respondents, Calabrese and Monistere, the premises supposed to be parcel C, comprising eight lots on a street known as Brunswick avenue. The lots were improved lots. They had water and gas connections. Sidewalks had been laid in front of the lots. Their value was $9,500, subject to a mortgage encumbrance of $5,000; that the said respondents did not convey the Brunswick avenue lots to the appellant, but other lots which were encumbered by a $5,000 mortgage. The bill further alleges that the appellant, upon discovering this alleged fraud, made demand upon the respondents and the Columbia Realty Company, for the return of the purchase price fixed by the appellant at $4,500, and offered to reconvey parcel C to the Columbia Realty Company. This offer the respondents refused. The bill charges fraud and prays that the respondents and the Columbia Realty Company be decreed to secure unto the appellant $4,500 by a mortgage or other security on the premises which the appellant conveyed to the Columbia Realty Company, and that the appellant has a lien thereon for the sum of $4,500 and that in default of payment of the lien the premises be sold.
From the foregoing statement of the substance of the bill of complaint it will be observed that the appellant desires *317 to rescind a portion of the contract and retain the benefits of other portions thereof. The respondents gave notice of a motion to strike out the bill of complaint upon the grounds of want of equity, no cause of action, and that the remedy, if any, was at law. The vice-chancellor before whom the motion was heard advised a decree dismissing the bill. From this decree the complainant below appeals.
It is well settled that one induced to enter into a contract by fraudulent misrepresentations has a choice of two remedies. The first remedy is that if the party who alleges he has been defrauded desires to rescind the contract on the ground of fraud he must restore to the other party to the contract what he has received, and recover what he has paid or parted with under the terms of the contract. The rescission must be made promptly.Byard v. Holmes,
There is also another ground which in our opinion sustains the decree advised, to which reference should be made. The contract was made on June 4th, 1925. The conveyances were made on July 15th, 1925. The bill was filed on February 11th, 1926, approximately eight months after the contract had been performed. The appellant states that she discovered on August 20th, 1925, that the lots she acquired were not the lots shown her. She, therefore, waited over five months before electing to rescind the contract so far as parcel C was concerned. If such a partial rescission could have been made we think it was not in the present case made with sufficient promptness to entitle the complainant below to proceed in equity. In the case of Faulkner
v. Wassmer,
The case of Dennis v. Jones,
The decree dismissing the bill of complaint is affirmed.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, JJ. 13.
For reversal — None. *319