131 N.J. Eq. 361 | N.J. Ct. of Ch. | 1942
This is a vendee's suit for specific performance. The facts have been stipulated. All necessary inferences which may be drawn from them are in legal effect a part of the facts agreed. Barre
v. Bethel (Vt.),
The first defense is laches. Since April 25th, the Association had been taking steps looking toward dissolution. On June 11th, the Commissioner of Banking and Insurance approved the Association's resolution to dissolve and liquidate, but trustees were not elected pursuant to R.S. 17:12-82 until July 17th. Within a couple of weeks thereafter, one of the trustees told complainant "that the transaction was off." And on August 15th, defendant's secretary mailed complainant a check for $100 to reimburse him for a payment he had made on account of the purchase. Six days later, complainant's attorneys wrote defendant returning the check and advising that complainant "is ready, willing and able to perform his part of the contract, and calls upon the trustees to perform the contract on their part. If you will advise us as to when and where we may make formal tender of the consideration called for under the contract, we will make the necessary arrangements." Complainant, thereafter, on several occasions, demanded performance, but made no formal tender of the consideration. On September 19th, defendant's attorney replied to the letter of August 21st. He stated that for certain reasons the trustees felt there was no obligation imposed on them to regard the transaction as a valid sale binding on them. The bill was filed October 18th.
A bill for specific performance for the sale of land must be promptly filed after definite refusal by the opposite party to perform the contract. "The doctrine is that the failure of the party receiving notice of abandonment to make immediate assertion of his right to enforce the contract, may be *363
considered as such an acquiescence in the notice, and an abandonment of equitable rights as to leave the parties to their legal remedies and liabilities. Agens v. Koch,
Laches is alleged in another aspect. Until the letter of complainant's attorneys was written on August 21st, there was no memorandum of the contract signed by complainant or anyone on his behalf, and hence the contract was not enforceable against him if he should plead the statute of frauds. When contracts are optional in respect to one party, delay on his part is viewed with special strictness. "If he takes advantage of his position to speculate upon the opposite party, a court of equity will not encourage or aid him in such speculation." Stoutenburgh v.Tompkins,
In the present case, during four months, the contract was not binding on complainant and then another month and a half elapsed before suit was begun. But the delay does not seem to have prejudiced the defendant at all. The defense of laches cannot be sustained.
Defendant also argues that the contract was too uncertain to permit of specific performance. The letter addressed by the secretary of the association to complainant, dated April 25th, 1941, reads:
"Your offer for 97 Arlington Boulevard, North Arlington, of $5,000 in stock and $500 in cash, less $150 in lieu of commission, was accepted, provided the frontage of the property sold be 27 feet. Please advise us whether or not this provision is acceptable."
For the purpose of ascertaining the meaning of a contract, the court must consider the situation of the parties and the accompanying circumstances. Jersey City v. Jersey City WaterSupply Co.,
Uncertainty is also alleged in respect to the purchase price because the writing does not explain the meaning of "$5,000 in stock." But it is and was a common practice for building and loan associations to sell land and accept in payment their own stock at the withdrawal value thereof. It is stipulated that defendant's board of directors, as far back as August 15th, 1940, had put prices on this lot and other lots payable partly in "stock." The defendant, in January, 1941, had sold another lot to complainant for a price, as stated in the minutes of defendant's board of directors, which included "$5,000 in stock" without other description. The formal contract executed in that instance shows that this meant shares of defendant association at withdrawal value. A reasonable inference is that the word "stock" in the defendant's letter of April 25th has the same meaning. Defendant had outstanding not only installment shares but income shares. It is optional with complainant to use either class of shares or both in payment for the land.
Complainant further contends that the contract evidenced by the memorandum is incomplete and uncertain since it fails to set forth "the type of title and deed to be given and whether there was to be any apportionment of taxes, interest, insurance or rents." The law provides all these terms. In the absence of special equities or agreement to the contrary, the grantor must convey good title in fee-simple, by deed of bargain and sale, without covenants. Lounsbery v. Locander,
There is no indication in the cause before me that negotiations were continuing, or that the parties intended to reach special agreements in regard to these or any other matters connected with this sale. On the contrary, the agreement reached seems to have been regarded by them as complete and final.
When parties enter into negotiations and reach a tentative agreement, but do not intend to be bound until a formal contract be executed, they cannot be held to their tentative bargain. But if the negotiations are finished and the contract between the parties is complete in all its terms and the parties intend that it shall be binding, then it is enforceable, although lacking in formality and although the parties contemplate that a formal agreement shall be drawn and signed. Wharton v. Stoutenburgh,
In Miller v. Cameron,
There will be a decree for specific performance. Since the contract was made, the trustees have paid to shareholders a liquidating dividend of 10 per cent. Of course, this will affect the settlement of the conveyance. Complainant, instead of $5,000 in stock, must deliver $4,500 in stock plus the dividend of $500 in addition to the cash stipulated in the contract. *368