29 N.J. Eq. 594 | N.J. | 1878
The appellants, who were complainants in the court below, filed their bill setting forth, amongst other things, that Mrs. Paulison, being seized in her own right, in fee, of a certain tract of land and premises in the city of Passaic, on or about the 3d day of March, 1869, through the said C. M. 3L Paulison, as her agent, bargained and agreed with Yan Iderstine, the defendant below, to sell and convey to him, and the said Yan Iderstine agreed to purchase of her, the said tract of land and premises, upon the following terms, viz.: That the price and value of said property should be $350 per city lot of'twenty-fiv.e hundred square feet, for as many of said lots as said property contained, and that said Yan Iderstine should pay $350 for each said city lot of twenty-five hundred square feet; certain property of Yan Iderstine to be taken in part payment at an agreed valuation, and the balance of the purchase-money, whatever that
The bill claims that the difference between these- two sums—viz., $4,900—is justly and equitably due to the complainant Mrs. Paulisou; and the relief prayed for is, in substance, that the defendant may be decreed to pay to her the the said sum of $4,900, with legal interest from the 3d day of March, 1869.
The defendant, on the other hand, denies- that he ever entered into any such contract or agreement as that alleged in the bill. He insists and testifies that the sale .in question was a sale of a tract with known and well-defined bounda
The theory of the complainants is, that this would have been done when those instruments were executed, if the parties had then known that the true contents of the tract of land in question were forty-five, and not thirty-one, city lots. Their request, therefore, is, in effect, that a court of equity will treat the instruments referred to as reformed in accordance with the true intention of the parties, and will aid them in collecting from the defendant the difference between the amount of purchase-money paid by him and that which, by his contract, he is bound to pay.
The objection of laches seems to have no application to the case as stated and understood by the complainants. Their suit is brought, not to rescind, but to enforce a contract. Its object is simply to recover an unpaid balance of purchase-money. In such a case, no reason is perceived why any delay in bringing the suit, short of the statutory limit, should bar a recovery. Lapse of time, however, must necessarily affect the determination of every case in which a contract is sought to be proved by oral testimony alone, and this is especially true as applied to a case like the pres
By allowing almost six years to elapse before filing their bill, the complainants have chosen to encounter this danger. Having founded their claim upon an express contract, they are hound to establish it by some preponderance of proof. This, in my judgment, they have failed to do. The decree of the chancellor is therefore affirmed, with costs.
Decree unanimously affirmed.