86 Mass. 259 | Mass. | 1862
Notwithstanding the right of the plaintiff to resort to his action in a court of law, to recover damages for the breach of the contract set out in the bill, he may at his election resort to his bill in equity to compel a specific performance of the contract. An action at law is not a perfect remedy in such a case, and it is only by a bill in equity that he can enforce the full performance of the contract. Hence it is well settled that the objection that the party has “ a plain, complete and adequate remedy at law ” does not apply to such bill for specific performance. Old Colony Railroad v. Evans, 6 Gray, 25.
The plaintiff, having shown the due execution of the instrument set forth in his bill, and a readiness on his part to perform the contract as set forth in such instrument, is now entitled to a specific performance thereof on the part of the defendant, unless some good and sufficient reason is shown justifying his refusal to perform it.
This he attempts to maintain and justify upon several distinct grounds.
1. That the court has no power to decree a specific performance of a contract in writing, unless every part of the actual agreement was reduced to writing; and that it is open to the defendant to show such omission in bar of the right to maintain the bill.
If this were the case of a plaintiff in a bill in equity seeking the specific performance of a contract in writing, but to the
The alleged omission here has no reference to the acts to be done by the defendant, but was the omission to recite the full extent of the consideration of those acts, or what was to be done by the plaintiff for the benefit of the defendant. The written contract fails to recite that the plaintiff was, in addition to the three lots of land, or, more accurately speaking, the right in equity to redeem the three certain lots of land named in the written contract, also to give to the defendant a gold watch and chain.
The defendant insists that this omission is absolutely fatal to the right of the plaintiff to any decree for specific performance, even though the plaintiff has been always ready and willing to deliver such watch and chain, as a part of his contract, and has brought the same into court, and made, a tender thereof to the defendant. In reference to this point, we have various authorities which seem to have a bearing thereon, and shall refer to the most important of them. Thus in 2 Story on Eq. § 770 a, it is said: “ Where the defendant sets up, in his defence to a bill for the specific performance of a written contract, that there has been a paroi variation or addition thereto by the parties, if the plaintiff assents thereto he may amend his bill, and, at his election, have a specific performance of the written contract, with such variations or additions so set up ; for, under such circumstances, there is a written admission of each party to the paroi variation or addition.”
The case of London & Birmingham Railway v. Winter, 1 Craig & Phillips, 57, is to this point. Lord Cottenham first states the rule that the plaintiff cannot, in case of a contract in writing, set forth such contract, and then proceed to set forth certain oral variations and additions, and ask the court to order a specific performance of the contract as thus modified by the oral evidence; but he adds: “ On the other hand, it is quite competent for the defendant to set up a variation from the written contract; and it will depend upon the particular circumstances of each ease whether that is to defeat the plaintiff’s title to have
Townshend v. Stangroom, 6 Ves. 328, and Ramsbottom v. Gosden, 1 Ves. & B. 165, sustain this view of the question. In the latter case, Sir William Grant put it to the plaintiff whether he would have a specific performance of the contract taken with the conditions and modifications established by the paroi testimony, or whether he would have the bill dismissed.
In the case of Gordon v. Hertford, 2 Madd. 106, the plaintiff was allowed to have a decree for specific performance upon the contract, as varied by the paroi evidence introduced by the defendant.
In Clarke v. Moore, 1 Jones & Lat. 723, performance was ordered upon the plaintiff’s electing to take the same with the paroi variations. And in Clarke v. Grant, 14 Ves. 519, a similar decree was passed, the plaintiff assenting to take the same with the variation set up by the defendant.
On the other hand, there are cases where the court have, upon the fact of such omission of a part of the contract being shown, dismissed the bill, although the plaintiff upon the hearing offered to take his order for specific performance upon the contract as modified by supplying its omissions. But we think such ruling was under peculiar circumstances, and where the plaintiff had attempted in the first instance to impose upon the court, and perpetrate a fraud, or where the claim was wholly inequitable, or there had been great loches. This last ground existed in the case of Garrard v. Grinling, 2 Swanst. 244, cited by the defendant.
The case of Molloy v. Egan, 7 Irish Eq. 590, was apparently more relied upon. It was a case where the bill was dismissed on the paroi evidence of a material omission in the written contract, although the plaintiff at the hearing offered to perform the true agreement. The reasons for dismissing the bill in that case are very fully stated by Lord Chancellor Sugden, in giving the opinion of the court. In the view of the court, the plaintiff
The present case has no such element of fraudulent attempt to enforce a contract literally, to the exclusion of any matter omitted by mistake to be stated in the written contract. The plaintiff, as it seems, has ever been ready to take the actual agreement, and fully to perform the omitted stipulation.
The weight of authority seems clearly with the plaintiff on this point; and while the court would refuse to give their aid in compelling the literal execution of a written contract which does not contain the whole agreement, they allow the objection to operate no farther than to require the party seeking the aid of the court to modify the written contract so as to embrace all the stipulations that are alleged to have been omitted or subsequently varied. In the case of a fraudulent attempt to enforce literally the written contract, the court would wholly refuse to sustain the bill.
In the citation made from 2 Story on Eq. § 770, it would seem that it might be necessary to amend the bill, where such a defence was relied upon, by introducing the oral agreement alleged to have been omitted. But this does not appear to have been required in the cases to which we have referred. To require such amendment would be to assume that the bill was originally defective. But the legal contract between the parties is the written contract, and the plaintiff could not properly set forth any addition or variation by paroi. At law the written contract would control, and the defendant would be estopped
2. The next ground of objection urged is, that the contract was obtained from the defendant by false representations made by the plaintiff as to the real estate of the plaintiff which was to be taken by the defendant in exchange for his ; and particularly that misrepresentations were made as to the amount and nature of the incumbrances on the same.
The burden of proving such alleged misrepresentation is upon the defendant; and upon an examination of all the evidence upon that point, the court are of opinion that this ground of defence is not sustained.
3. The further ground urged in defence is, that a decree requiring a specific performance would be inequitable, and ought to be refused, upon the ground that the defendant would receive no adequate consideration for the property he is to transfer, and that the bargain was unequal, and greatly prejudicial to the defendant.
Upon this point something more must be shown than that the bargain was an unequal one, and that too high an estimate was put upon the property of the plaintiff. The general language of the authorities on this subject is, that mere inadequacy of consideration constitutes no defence to a bill for specific performance, unless the inadequacy is such as amounts to evidence of fraud. Fry on Specif. Perf. § 280. Viele v. Troy Boston Railroad, 21 Barb. 381. Coles v. Trecothick, 9 Ves. 234. Abbott v. Sworder, 4 De Gex & Sm. 448. Cathcart v. Robinson, 5 Pet. 263. It is however stated in terms somewhat modified thus : “ Mere inadequacy of price is not per se sufficient to set aside a transaction, yet when it is so great
Upon the question of the value of real estate, there may be expected to be found much difference in the estimate. Such we find to be the case here. Taking the estimate of the witnesses of the plaintiff, the difference between the real value and that at which it was estimated by the parties would wholly fail to present a case where the court should decline to interfere for this cause. Taking the estimate of some of the defendant’s witnesses, it would seem to be certainly a very unequal bargain. But the witnesses for the defendant differ much among themselves as to the value of the property.
The fact that this was wholly an exchange of property, without the payment of any money on either side, is a feature of the case not to be overlooked. The property of the plaintiff was of a kind susceptible of rise and fall from its location, and its value likely to change by future circumstances. All these considerations were or ought to have been regarded by the parties ; and no fraud being shown, and the parties having fixed their own estimate of the relative values of the property that each was to receive from the other in exchange, they must now be bound by their contracts as to the same.
As to the objection that the court will not decree a specific performance of the agreement so far as relates to the release of dower by the wife of the defendant, if the prayer of the bill is that the wife shall execute such release, it would of course be denied, she not being a party to this contract, nor under any obligation to execute such release. Squire v. Harder, 1 Paige, 494. But this will not prevent the court from compelling the defendant to execute the contract on his part, so far as it is personal to him, and also charging him in damages for the inability to execute his agreement in that respect.
The plaintiff will therefore be entitled to a decree in his favor