83 N.J. Eq. 491 | New York Court of Chancery | 1914
On July 22d, 1907, Horace B. Burr entered into a contract with William Bosenstein for a conveyance by him to Bosenstein
The point appears to have been first passed upon in the case of Foligno v. Martin, 16 Beav. 586; 22 L. J. Ch. 502. In that case there was a decree against a purchaser for specific performance. He made default in payment of the purchase-money. Sir John Romilly, master of the rolls, declared that the complainant was entitled to get rid of the contract unless the defendant should pa.y the purchase-money within a time limited. This was followed by Sweet v. Meredith, 4 Giff. 207; 32 L. J. Ch. 147. In that case there was a decree for specific performance which was not obeyed. Motion was made that the contract might be rescinded and all the proceedings stayed in the suit, reserving liberty to the complainant to apply to assess his damages. The decree in that case was in favor of the vendor. The vice-chancellor made the order in the terms of that made in Foligno v. Martin, supra, but added that the complainant should be at liberty to apply in respect of any damages sustained from breach of the contract. The order was made in the following terms: that the contract be rescinded and that all further proceedings in the
I have not been able to find that the point has been discussed in any American cases, but the English authorities above cited seem to be conclusive.
At the time of the argument of this motion there was also presented a motion on behalf of the complainant for an order for a writ of execution against the defendants to collect the costs awarded to the complainant by the decree, and which by the same decree were ordered to be paid to the complainant’s solicitor. It is true that by the decree the costs of the suit were awarded to the complainant and were directed to be paid to his solicitor, but has not the complainant’s subsequent default dis-entitled him to any such relief? If he had complied with the decree by paying the purchase-money, he would have been en
I will advise a decree rescinding the contract and staying all proceedings in the suit and denying the complainant’s motion