28 N.J. Eq. 306 | New York Court of Chancery | 1877
This suit is brought to recover from the defendant $4,900, alleged to be due from him to Mrs. Paulison, one of the complainants, with interest thereon from the 3d of March, 1869. The ground of the claim is, that at that date the complainant sold to the defendant an unimproved plot of land in the city of Passaic, in this state, belonging to Mrs. Paulison; that the price agreed to be paid therefor was $350 a city lot of 2,500 square feet; that, owing to an error in the map on which the plot was laid down, the parties were misled as to its contents, and a mistake was consequently made in computing the price, which was fixed at $10,900, instead of $15,800 : it being supposed that there were in the property
It appears that the defendant, in all the conversations which were had with him on the subject, insisted that he was not liable to pay anything more than he had already paid, and that he had bought the property at a price ($10,900) fixed by Mr. Paulison, and that he did not agree to pay for it according to its contents. For part of the purchase money the defendant conveyed to Mrs. Paulison a house and lot belonging to him in Passaic, and for the balance he gave, to her a mortgage for $7,100, and interest, upon the property conveyed to him. That mortgage was assigned by the complainants to B. ~W. Merriam, in August, 1869, and it has been paid off.
The defendant testifies that Mr. Paulison made a calculation upon a piece of paper, before he told him what he would take for the property. He swears that he was so much influenced by the amount of the purchase money, that had it been stated to him at the amount now claimed, he would not have taken the property. Mr. Eritts testifies that the defendant was reluctant to take the whole of the plot. He says: “ Mr. Van Iderstine’s reasons to me from first to last were that he did not like to take the responsibility of carry
Although the complainants offer, as excuse for not having made any demand or taken any proceedings for rescission or any other relief in the premises, their hope of an amicable adjustment of the matter, through the good offices of mutual friends, yehit appears that at all times the defendant refused to entertain the complainants’ claim, and alleged that he had fairly paid all that he had agreed to pay for the property, and all that he was in justice bound to pay. It was the duty of the complainants, in view of that claim on the part of the defendant, if they desired relief, to take immediate steps for the rescission of the contract while as yet the pai'ties could be placed in statu, quo. The bill, as already stated, is in fact a bill for the. recovery of part of the purchase money of the conveyance. It prays, indeed, that the defendant may be decreed to be a trustee for Mrs. Paulison for the amount of purchase money which the complainants claim from him, but, notwithstanding that, it is merely a suit for the recovery of an amount of purchase money which, as the complainants allege, was not received, through mutual mistake of the parties in making the computation of the amount. The case has no claims upon a court of equity.
It remains to consider the objection of misjoinder raised in the answer and insisted upon at the hearing. There is