Phyfe v. Wardell

2 Edw. Ch. 47 | New York Court of Chancery | 1833

The Vice-Chancellor.

The bill shows an, apparently/ fair contract, binding upon the defendants and virtually fulfilled by the complainant; while enough is stated, to make' out a case of fraud against the defendants, in their procuring a new lease under the seeming sanction of the contract and yet attempting to disclaim it and holding the demised property as though it had never been made.

It has been said in argument by the counsel for the defendants, that the church was under no obligation to grant a new lease to any one—they had a right to refuse it to the complainant, and virtually they did do so by delivering a lease to the defendants after notice from him not to deliver it. But the bill states, and, at present, I must be governed by it, that, by the custom of the church, the complainant was entitled to the new lease and the same would have been granted to him and not to the defendants if no agreement for the sale of the privilege or good will, which was a marketable article, had taken place, and also provided no directions for making out the new" lease to them had been given by him. This is a matter of fact. It is an averment in the bill, which, uncontradicted, precludes all argument to the contrary. Nor do I understand, how the notice which he gave not to deliver the lease could put an end to the contract and leave the defendants at liberty to make their own contract with the church independent of the complainant. " The notice did not amount to any relinquishment of right or privilege in the lease which they were about to take; nor did it show any rescinding of the contract. The object was to secure the payment of the purchase money and a performance, on their parts, of the agreement, by inducing the agent of the church to withold the delivery of the lease until they complied; and •this was perfectly consistent with the agreement as a subsisting one, and which the complainant meant to enforce. At present I am so bound to regard it.

The question then is, whether this is such an agreement as •equity will aid a party in enforcing ? There would be no necessity for resorting to this Court, if the only object of the •bill were to recover payment of a sum of two thousand •six hundred and fifty dollars. A court of law could afford an adequate remedy ; and, as a general rule, equity does not interfere to decree a specific performance of contracts, except where the legal remedy is inadequate or defective and where something remains to be done over and above the mere payment of money. But, here is something more. We find it in the shape of an indemnity against any damages which may be claimed by Decker. The defendants made their purchase, subject to this man’s right of occupancy for one year; and if they chose to dispossess or prevent him from occupying, then those who have assumed the responsibility are bound, as a matter of common justice, to protect the complainant from the consequences.

. An objection is taken, because this part of the agreement is not in writing; and, based upon this objection, it is said the complainant cannot be permitted to allege or give it in evidence: more especially in the presence of a written memorandum which must be supposed to contain the whole of She agreement. The bill sets forth the reason of the omis:sion: it was induced by the representations of the defendants and the complainant confided in them. • If they were now permitted to take advantage of the omission and hold the complainant strictly to the written memorandum as the only evidence of the agreement, this court would be sanctioning the commission of a fraud. For the purpose of preventing such a consequence, this court, under the circumstances, is at liberty to disregard the writing and treat the whole transaction as a verbal contract. And, upon the basis of part performance, where possession has been taken or the acts done amount to part performance, it may receive parol proof of the whole agreement, independent of or in connection with what may be in writing, in order to make out the contract. This principle appears to have been acknowledged by Ch. J. Thompson before the court of Errors, in Parkhurst v. Van Cortland, 14. J. R. 33.; and this I think is fairly deducible from what was said by Lord Redesdale in Watt v. Grove, 2. Sch. & Lef. 502, namely, that under circumstances (like the present) which denote fraud in omitting to reduce a part of the agreement into writing, the whole is open to parol proof. It is for this reason a court of equity has jurisdiction and that it must, necessarily, exercise more extensive powers in its investigation, when going through the medium of parol evidence, than a court of law can do, which, by its very rules and mode of proceeding, cannot enter into the question of fraud or mistake for the purpose of setting aside or reforming a written contract: Fullagar v. Clark, 18. Ves. 483.

Upon the ground of there having been this verbal assurance in relation to Decker’s tenancy (and relying upon which the complainant forbore to insist upon its insertion in the written memorandum), with the defendants subsequent refusal to abide by it, the complainant may be entitled, at least, to some portion of the relief which he seeks in this court: Chamberlain v. Agar, 2. V. & B. 262.; and, as the bill is good for one purpose, a general demurrer to the whole of it cannot be sustained.

The demurrer must be overruled, with costs.