Nichols v. Williams

22 N.J. Eq. 63 | New York Court of Chancery | 1871

The Chancellor.

In the premises to the bill, it is stated that the suit is brought by Nichols, in behalf of the Trades Manufacturing Company. The company is in no other way made a party to the suit; this does not make it a party. It is not before the court, or under its control.

In this case Nichols, the complainant, has no interest in the suit, or in the contract. The real party in interest is the company; it is so expressly stated in the bill, which contains the allegation that Nichols executed the agreement as president of the company, acting for and on behalf of the company, as the defendant knew. An agent cannot bring suit on an agreement made by him for and on behalf of his principal, and alleged so to be at the execution of it. Nor can a pnresident of a corporation bring suit in his own name, on an agreement signed by him as president, and entered into on behalf of his corporation. And, in equity, all suits must be in the name of the party really interested, and where the name of an agent or trustee is used, the cestui que trust must be made complainants with him. Fry on Spec. Perf., § 147; Story’s Eq. Pl., § 209; Malin v. Malin, 2 J. C. R. 238; Douglas v. Horsfall, 2 Sim. & Stu. 184; Field v. Maghee, 5 Paige 539; Bailey v. Inglee, 2 Paige 278.

The company is a-'necessary party to this suit, and the demurrer must be sustained on the ground of its omission.

Specific performance will not be decreed of any contract when any material part of the terms or conditions are uncertain. In this case two mortgages for large amounts wore to be given, one for $50,000, the other for $9500. It is evident that some time was to be given for the payment of these, and probable that some interest was to bo allowed. The time and the interest are both material, hieither is settled, both are to be ascertained by subsequent negotiations. A mortgage for $50,000, payable on demand, or one day after date, or a mortgage conditioned to pay that sum ten years after date, with no mention of interest, or with interest at two or seven per cent., would each comply with the terms of the contract stated in the bill. This is the same, practically, as a contract to pay a certain sum on terms or credits to bo arranged between the parties. In the case of McKibbin v. Brown, 1 McCarter 13, Chancellor Green refused to decree specific performance of the agreement, certain in every other respect, except that the terms or credits were to be agreed upon by the parties. Tie construed terms or credits to mean credits only. The case of McKibbin v. Brown is the application, to facts like these before me, of the well settled doctrine above stated, which that case itself, and the authorities cited in the opinion of the Chancellor, clearly establish. It is very clearly expressed in a passage quoted by the Chancellor, from a judgment of Lord Eosslyn : “ I lay it down as a general proposition, to which I know no limitation, that all agreements, in order to bo executed in this court, must be -certain and defined.” This doctrine was acted on again in this court, in King v. Ruckman, 5 C. E. Green 316. In that case part of the premises to be conveyed was described in the written agreement by those words : “ Also two lots of land in Hackensack township, county of Bergen;” without anything else in the contract to designate or identify them. One of the grounds of the dismissal of the bill was that this description was too uncertain; and, although this judgment was reversed in the Court of Appeals, yet the terms in which the opinion of the court on this point was announced, affirm the doctrine. The ceurt say: “ Taking the contract, bill, and. answer together, it can be made to appear with sufficient certainty, without resorting to parol evidence, what lands were intended.” In that case the certainty in the contract was not held to be immaterial, but that the uncertainty was remedied by the allegations in the bill and answer.

In this case there is no allegation in the bill on this matter. There is nothing by which the court can judge even what terms as to credit and interest the complainant insists upon.

The view taken of these two causes of demurrer, makes it unnecessary to consider the other question, whether the $10,000 stipulated for, must be considered as stipulated damages or as a penalty.

The demurrers must be sustained.