26 N.J. Eq. 223 | New York Court of Chancery | 1875
This is a suit for specific performance, to compel the defendant to convey to the complainant a lot in Jersey City, which the latter purchased of John M. Gibson, as agent of the former. The authority of Gibson to sell the property is denied by the defendant, and it is also insisted, on his behalf, that conceding that Gibson had authority to sell, the contract entered into by him, with the complainant, is' not such a one as this court will compel the defendant to perform. The objections made to it are that it lacks both mutuality and certainty. The contract in question was in writing, and was as follows : “Received, Jersey City, March 10th, 1874, from Mr. Dominick Reynolds, the sum of four hundred dollars, on account of his purchase of the house and lot known and situate as No. 164 Morgan street, Jersey City, sold to him this day for the sum of four thousand dollars. It is agreed that if the title’of the above property should prove unsatisfactory, that the above sum shall be returned to said Dominick Reynolds.
“ $400. ' (Signed) J. M. Gibson,
' “ Agent for Terrence O'Neil, oioner.”
To dispose, in the first place, of the objections to this agreement : The. objection on the score of want of mutuality, is put on the ground that the complainant was, by the agreement, not only left at liberty. to take the property or not, as he should see fit, but was to have a right to a return of the $400 paid by him on account of the purchase money, in case he should not be satisfied with the title. That provision, however, is in effect no more than a stipulation on the part of the defendant to return the money paid, in case the title should prove to be such as the complainant ought not'to be required to accept. The agreement, read in the light of
Rut it is insisted, in this case, that as there was no tender by the complainant until after the commencement of this suit, he is not entitled to relief. The testimony shows that pmmediaiely after the contract was signed, Gibson sent a messenger to the defendant to inform him of the sale, and that the defendant declared to the messenger that he would not be bound by the contract, and would not sell the property at all. It also appears, that in a very few days thereafter, Gibson went to see the defendant on the subject, and that in the interview which then took place between them, the defendant utterly refused to sanction the sale, and on Gibson’s saying that he had received $400 on account of the price, and had given a receipt for it, the defendant declared that he would not give a title for ihe property. It also appears that, between the date of the receipt and the 15th of April following, the complainant frequently called at Gibson’s office in reference to the conveyance, and was informed by him of the defendant’s refusal to be bound by the contract, and on that day he went to Gibson’s office to take the deed, but was then again told
It remains to consider the question, whether Gibson had authority to sell. The defendant testifies that an attempt was made by Gibson to sell the property for him, at public auction, in February, 1874, which was unsuccessful, and that it was then determined between them that the defendant should repair the house, and that Gibson should again endeavor to sell it at auction some time about the middle of April following; that he told Gibson not to sell the property ; that he would go and have it repaired, and would inform Gibson when he should have put it in order; that he went immediately home and commenced the repairs, and that after he had been engaged at them a couple of days, Gibson sent him word that he had sold the property to the complainant. He adds that he answered that he had given no authority to sell for that price, and that the purchaser could not have the property.
It appears that Gibson, after the auction, advertised the property in the newspapers, and that shortly before the sale to the complainant, he obtained an offer for it, at the price of $4000, from a man living in Jersey City. He communicated that offer to the defendant, who was desirous of accepting it. The offer, however, was withdrawn, on the ground that the property was not worth that price. That the offer was made to Gibson, and by him communicated to the defendant, and that the latter went to Gibson’s office to endeavor to effect the sale on that offer, is clearly proved. The defendant’s testimony on this subject is of a character to subject him to the .charge of disingenuousness. Gibson swears that when
The complainant is entitled to the relief he seeks.