93 N.J. Eq. 446 | N.J. | 1922
This is a suit so called for specific performance. The only question is a question of fact as to which we have unfortunately reached a different conclusion from the vice-chancellor.
The contract was made by letter on February 4th, 1920. A foreclosure was then pending to perfect the title. The contract was that Mrs. Patterson should pay $30 a month until the Loizeaux Lumber Company was able to give a free and clear title. She agreed to pay them $3,700 as soon as they were able to do this. Three thousand dollars was to be raised by first mortgage on the property; $700 in cash which she was to raise by second mortgage. Apparently, she expected to raise the $3,000 on first mortgage of some third party, but this proved impracticable and finally the defendants agreed to accept her mortgage for $3,000 in lieu of that much cash. Notice was subsequently given to her that the defendants were ready to close the matter. She was, however, unable to do so and from time to time received an extension, the relations between her and the wife of Mr. Loizeaux being veiy cordial. The defendants continued urging her to comply with the contract until July, and thereupon there was correspondence, which, we think/clearly amounted to an abandonment of the contract. Meantime she was in possession of the property and was getting behind in her rent. On July 2d she wrote for a further extension of time, enclosing the June rent. On July 9th they wrote her that as no arrangements had been made about the property they were offering it for sale, as she had not completed her arrangements as she had expected, and they inquired when they could get possession. There had been inquiry at her house about the particulars as to its purchase and Mrs. Patterson explained that the purchase could hardly be called a purely business matter; that the purchase price verified that and that the defendants could have gotten a very much larger amount for the property than they were selling it to Mrs. Patterson for; that Mr. Loizeaux had been unusually kind and patient. She added that s'he was going to get the money of a Mr. Tebbs, and that her husband had called on Mr. Teb'bs the
Obviously, she cannot perform. She is under obligation to give a mortgage, and this she cannot do without her husband joining. He does not even join in the bill and profess his readiness to execute the mortgage so as to put his wife in a position to comply with, the contract if in other respects it were possible.
The learned vice-chancellor thought that this difficulty could be avoided by directing that the property be conveyed to her,
Under these circumstances, we think that she has no equitable right under the guise of specific performance to the making of an entirely different contract after she had in effect treated her rights as at an end and had led Loizeaux to believe that he might make the conveyance to another customer.
Let the decree be reversed and the bill be dismissed, with costs, in both courts.