43 N.J. Eq. 377 | New York Court of Chancery | 1887
The complainant sues in a dual capacity, in her own right, as well as in that which she holds as the administratrix of her deceased brother, Nathaniel S. Rue, Jr. The foundation of her action is a contract made by her father, Robert 'C. Rue, with the defendants, John G. Meirs and Sarah E. Davis, and which was reduced to writing and signed by her father and the defendants, and which reads as follows:
*378 “This agreement, made the 27th of September, 1875, by and between Sarah E. Davis and John G. Meirs, of Cream Ridge, county of Monmouth, state of ifew Jersey, of the first part, and Robert C. Rue, of the same place, as the-representative of his children, L. M. Rue and N. S. Rue, Jr., of the second-part, witnesseth: in consideration of the covenants on the part of the party of the first part hereinafter contained, doth covenant and agree with the party of tlie second part, Robert C. Rue, that we, Sarah E. Davis and John G. Meirs, of the first- part, do agree to pay the sum of $4,000 to R. C. Rue, as the-representative of his children, L. M. Rue and N. S. Rue, Jr., provided R. C. Rue makes no objection to the proof of the will and the settlement of the estate of Lucretia S. Meirs, deceased, so far as said will has reference to said children.”
The complainant’s bill alleges, that this contract grew out of a threatened contest over a paper purporting to be the will of Lucretia S. Meirs, deceased. Mrs. Meirs was the mother of the-defendants, and the grandmother of the complainant and her brother, the complainant and her brother being the children of a deceased daughter of Mrs. Meirs. Mrs. Meirs died on the 9th of September, 1875. By her ivill she made an unequal distribution of her property, giving the defendants much more than two-thirds. The complainant and her brother were-both infants at the time of their grandmother’s death. Their father was present at the reading of her will, and, immediately after he knew its contents, expressed his dissatisfaction with its provisions, and protested against its admission to probate. The bill says, that the defendants, recognizing the unequal distribution which the testatrix had made of her property, and the grounds which existed for contesting her will, they, to induce Robert C. Rue to forbear from contesting the will on behalf of his children, made the promise contained in the contract. The bill further says, that the will of Mrs. Meirs was, three days after the contract was signed, admitted to probate, without contest, and that since then her estate has been settled, and her property distributed in accordance with the terms of her will, without objection on the part of Robert C. Rue, or his children,, but with their acquiescence. But the $4,000 have not been paid, and this action is brought to compel payment.
The defendant Meirs demurs. He disputes the validity of the contract. He says that he and his sister got nothing for their
The question, whether a promise to forbear suit to enforce a disputed claim or right, where the claim or right is honestly asserted under a belief that it is substantial, although it is in fact wholly unfounded, is sufficient, as a consideration, to support a promise to pay money, has recently been put at rest in this state by a decision of the supreme court. That court said in Grandin v. Grandin, 20 Vr. 508: “ The compromise of a disputed claim, made bona fide, is a good consideration for a promise, whether the claim be in suit, or litigation has not been actually commenced, even though it should ultimately appear that the claim was wholly unfounded — the detriment to the party consenting to a compromise, arising from the alteration in his position, forms the real consideration which gives validity to the promise. The only elements necessary to a valid agreement of compromise are the reality of the claim made, and the bona fides of the compromise.” And what I understand is meant by the phrase, “ the reality of the claim made,” is that the claimant shall assert his claim in good faith, believing that it is real, or, in the language of Lord Justice Cotton, in Miles v. New Zealand Alford Estate Company, L. R. (32 Ch. Div.) 266, “a claim is honest if the claimant does not know that his claim is unsubstantial, or if he does not know the facts which show that his claim is a bad one.”
The court, in deciding Grandin v. Grandin, adopted the principle established by the court of Queen’s Bench, in Cook v. Wright, 1 B. & S. 559. That case was heard by Cockburn, C. •J., and Blackburn and Wightman, JJ. The material facts, as stated in the opinion of Mr. Justice Blackbufn, were: “The
The same doctrine was subsequently declared in Callisher v. Bischoffsheim, L. R. (5 Q. B.) The court, speaking by Cockburn, C. J., there said: “ The authorities clearly establish, that if an agreement is made to compromise a disputed claim, forbearance to sue in respect of that claim is a good consideration ; and whether proceedings to enforce the disputed claim have or have not been instituted makes no difference. * * * Every day a compromise is effected on the ground that the party making it has a chance of succeeding in it [in enforcing his ■claim or right by suit], and if he bona fide believes he has a fair ■chance of success, he has reasonable ground for suing, and his forbearance to sue will constitute a good consideration. When such a person forbears to sue, he gives up what he believes to be a right ■of action, and the other party gets an advantage, and, instead of being annoyed with an action, he escapes from the vexation incident to it.” Applying these principles to the contract on trial, its validity, in point of consideration, is put beyond dispute. In cases of this class, if the contract has been fairly made, no inquiry will be made as to the adequacy of its consideration. Grandin v. Grandin, supra. By the terms of this contract, it will be observed, that the advantages were all with the defendants. They were not bound to pay until the other contracting party had performed his part of the -contract, and they had received everything under the contract which they were entitled to receive. Stated in substance, the contract is this: the defend
The defendant also raises a question of jurisdiction. He denies the power of this court to give the complainant the relief she asks. This objection raises a question, which, in view of the peculiar condition of facts which the case presents, seems to me to be one about which strong diversity of opinion may exist, and I must confess that the conclusion which I have reached concerning it is not one which I express without doubt. The draftsman of the bill has attempted to lay a foundation for equity cognizance by asking for a reformation of the contract. The contract, it will be observed, says, that, “in consideration of the covenants on the part of the party of the first part hereinafter contained, doth covenant and agree with the party of the second part, Robert C. Rue, that we, Sarah E. Davis and John Gr. Meirs, do agree to pay the sum of $4,000 to R. C. Rue.” &c. The words, “party of the first part,” are used where, it is manifest, the words “ party of the second part ” were intended to be used. And it is also obvious, that the words “party of the first part,” should have been inserted between the words, “hereinafter contained” and the words “ doth covenant,” in order to make the contract express in formal words the meaning of the parties. But these mistakes are palpable, and do not create the slightest obscurity as to the meaning of the contract, nor prevent it from being so construed as to give full effect to the real intention of the parties. It is a rule of construction, of universal application, that a contract, notwithstanding mistakes therein, shall, if the meaning of the parties can be clearly discerned, be construed as near the minds and appar
This suit is brought to enforce a money demand, founded on a simple contract. If that was all there was of it, there would not be the least pretence of jurisdiction in this court. And so, if the contract consisted of a promise by the defendants to pay money to the complainant and her brother, for a consideration moving from their father to the defendants, there can be no doubt, that an action at law might be maintained on it, for it is settled, that in cases of simple contract, if one person makes a promise to another for the benefit of a third, the third may maintain an action at law on it, though the consideration does not move from him. It is otherwise when the contract is under seal. Joslin v. New Jersey Car Spring Co., 7 Vr. 141. But this contract was made by a person acting as trustee for the benefit of his eestuis que trust. A father, as the natural guardian of his two infant children, agrees to waive his right, as the person having the first and best right to act as the next friend of his children, to contest the validity of a will by legal proceedings, on condition, that if no contest is made, and the will is admitted to probate, and the testatrix’s property is distributed as the will directs, the persons taking the largest benefit under the will, will pay a certain sum of money, not to the children, but to the father for his children. Now, in such a transaction, the father, from the beginning to the end, is acting in a capacity of pure trust. It is true, he is a self-constituted trustee, but he assumes that character under circumstances when the common instinct of our nature made it his duty
I think there is reason to doubt whether the children could maintain an action at law on this contract in their own names. ISTo promise is made to them; on the contrary, the promise is to their father, the language of the contract being, “ we do agree to pay the sum of $4,000 to R. C. Rue, as the representative of his two children.” But if the children could have maintained an action at law in their own names, it would be necessary now, as one of them is dead, that two actions should be brought, one in the name of the surviving child, and the other in the name of the administratrix' of the deceased child. There may, perhaps, be less doubt about the right of the father to maintain an action at law in his name for the use o.f his children. I think such action would be maintainable. The cases at law, however, upon this subject are at variance. Judge Story, in his Commentaries on Equity Jurisprudence, calls attention to the fact that the cases at law on this subject are not uniform, and that the law, in consequence, is somewhat uncertain, and then adds: “ But, be this as it may, it is certain that a remedy would lie in equity under like circumstances as a matter of trust; for it is laid down in a work of very high authority, if a man gives goods or chattels to another upon a trust to deliver them to a stranger, chancery will oblige him to it.” 2 Story’s Eq. Jur. § 104,1. And I suppose it would necessarily follow, that, where a promise was made to one as a trustee for another, upon a sufficient consideration, chancery would oblige the promisor to perform his promise at the suit of the cestui que trust, especially in a case where the consideration for his promise consisted in the extinguishment of a right belonging to the cestui que trust.
But another fact, and the one which I think possesses the greatest force, remains to be mentioned. The bill alleges, that
This suit, in its present condition, is defective in parties. Robert C. Rue, the person with whom the contract, on which the suit is founded, was made, is not a party. His omission is made a ground of objection by the demurrer. He is a necessary party, and this ground of demurrer must be sustained. The others must be overruled.