34 Del. Ch. 28 | New York Court of Chancery | 1953
On April 26, 1947, defendant Safe Harbor Realty Company, a corporation of the State of Delaware, and Safe Harbor Fishing Qub, of the City of Chester, State of Pennsylvania, entered into a written agreement providing for the sale by the realty company to the fishing club of certain land bordering on the Delaware Bay, in Kent County, near a place known as Pickering Beach, designated on the plot as 541 lots, a parking lot 700 feet long and 100 feet wide, and a tract of land on the shore of the Delaware Bay to be used as a club house. The agreement provided as a consideration for the sale of said lots that the plaintiff would pay to the corporate defendant the sum of $2,000; that the plaintiff would dredge a canal or creek and a basin for boats; that it would erect at the mouth of the creek a club house; that it would gravel the streets “that are laid out on the plot plan they are purchasing”, and would pay to the corporate defendant 50% of the sale of each lot until the said sum of $2,000 was fully paid to the corporate defendant; that in default of said agreement the plaintiff would forfeit all work done on said property as liquidated damages.
Prior to the execution of said agreement the corporate defendant had acquired title to certain real estate in Kent County for a real estate development. A part of the tract was laid off in lots and streets.
Plaintiff has requested that defendants be ordered and directed to construct a road leading to the club house site; that defendants return to plaintiff the sum of $6,500 which plaintiff spent in dredging the canal and yacht basin and that defendant corporation be directed to perform its obligations pursuant to the agreement of April 26, 1947.
Plaintiff contends that it was relieved from its duty to erect a club house on the club house site by reason of the excessive cost which would be entailed in the erection of a club house on that site and by reason of the serious difficulty, if not impossibility, of moving materials to the club house site in the absence of the construction of the road. Plaintiff entered into a binding contract. At the time of the execution of the agreement there was no road leading to the club house site. From the testimony of the various witnesses it was obvious that a road leading to the site of the proposed club house would have to be constructed. Nevertheless, plaintiff executed an agreement which contained nothing relative to the construction of the road or as to whose responsibility its construction would be.
“ Tt is a well settled rule of law, that if a party by his contract charge himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party.’ ”
Plaintiff relies upon impossibility of performance and breach of the contract by the defendants in failing to construct the road. As to the road, I find no specific or implied obligation on the part of the defendants to construct it. It is undisputed that the excavation of the canal and yacht basin were to be at the expense of plaintiff and that the dirt obtained therefrom was to be used in the construction of the road. If there had been sufficient dirt obtained from the excavation work to use for the road, the cost of constructing the road would have been materially reduced. The difficulty arose when it was found that the dirt obtained was not sufficient for the purpose of making a roadbed. As the matter now stands, in order for work to proceed on the development as planned, it probably would be necessary to haul dirt for the purpose of making a roadbed. Plaintiff’s inability to haul materials to its yacht club site by reason of the lack of a road does not make plaintiff’s obligation to erect a club house on the club house site impossible of performance: it merely increases the difficulty and expense. I therefore do not find that the defendant corporation has breached the agreement by reason of its failure to construct the road.
Plaintiff contends that in order to build a club house at the club house site it would be necessary to drive piling for a foundation for the building. There is testimony, which is not disputed, to the
Mere inconvenience or substantial increase in the cost of compliance with a contract, though they might make compliance a hardship, cannot excuse a party from the performance of an absolute and unqualified undertaking to do a thing that is possible and lawful. Courts cannot alter contracts merely because they work a hardship. A contract is not invalid, nor is the obligor therein in any manner discharged from its binding effect, because it turns out to be difficult or burdensome to perform. See cases cited in 12 Am.Jur., Contracts, Sec. 362, p. 928, n. 8. Mere inability to perform a contract will not alone relieve the defaulting party. Williams v. Armour Car Lines, 7 Pennewill 275, 79 A. 919. Accepting the testimony offered by plaintiff, it amounts, at most, to a substantial increase in cost of the erection of the club house by reason of necessity of using piling and by reason of the necessity of constructing a road to the club house site. As far as the club house site is concerned, it was a marshy formation. It was therefore obvious to plaintiff at the time of the execution of the contract that there might be considerable difficulty in erecting a club house on that site. Sufficient dirt for the construction of the road was not provided as a result of the excavation of the canal and yacht basin. It would be necessary in order to construct a road to haul additional dirt thereon. Admittedly, there is hardship, serious inconvenience, and a substantial increase in cost involved, but nothing more. I conclude that the erection of the club house on the club house site is not impossible of performance.
Plaintiff has asked this court to decree specific performance of the contract. Specific performance is a matter of grace and not of right and rests in the sound discretion of the court. That power will not be exercised in favor of a complainant who fails to show either substantial performance on his part or that he offered to discharge the duty imposed upon him by his contract. Capital Bakers, Inc. v. Leahy, 20 Del.Ch. 407, 178 A. 648. See 4 Pomeroy’s Equity Jurisprudence, (5th Ed.), Sec. 1407, p. 1050. Plaintiff has failed to comply
Plaintiff at the trial and at the oral argument requested this court to decree that defendants execute and deliver to plaintiff, or to the individual purchasers of lots, deeds for all lots paid for. Plaintiff contends that the written agreement between plaintiff and corporate defendant provides that the lots purchased by members of the fishing club shall be conveyed by the corporate defendant to the fishing club. The practice was for the corporate defendant to convey directly to the individual purchaser. Since it is stipulated by defendants in the record that deeds will be executed and delivered for all such lots paid for up to and including April 26, 1951, the date stipulated in the notice of default, it will be unnecessary for me to determine at this time the rights of the plaintiff with respect to these lots.
An order will be signed, upon notice, in accordance with this opinion.