71 N.J. Eq. 735 | N.J. | 1907
The opinion of the court was delivered by
The appeal in this ease is from a decree, made upon a cross-bill filed by the defendants, which requires the complainant to specifically perform an agreement, in writing and under seal, for the conveyance of a tract of land at Avalon, on Seven Mile Beach, Cape May county, New Jersey. The purpose of the original bill filed by the complainant was to have this agreement declared to vest in the defendants no right or interest in the lands described therein, and to be absolutely null and void, by reason of failure of performance on their part. The decree appealed from, in addition to the affirmative relief granted on the defendants’ cross-bill, denied the relief sought by the complainant in its original bill. The complainant appeals both from the portion of the decree which refuses' it relief and also from that part thereof which grants relief upon the defendants’ cross-bill.
The agreement which is the basis of this litigation was made on the 6th day of May, 1903. By its terms the defendants, who were connected with various educational institutions in the city of Philadelphia, agreed, among other things, to incorporate a society under the name of the American Association for the Advancement' of Education; to conduct a summer school of the association at Avalon, New Jersey, and nowhere else, for a
“It being the intention of this agreement that the said parties of the second part [i. e., the defendants] shall conduct a summer school Iona fide, in accordance with the prospectus, a copy of which is hereunto attached, for a period of three years, and should in return receive from the Seven Mile Beach) Company the land hereinbefore mentioned in the manner herein described.”
It appears from the proofs that in the summer of 1903 the defendants, having obtained from the borough of Avalon permission to use the public schoolhouse of the borough, and from the complainant permission to use an old sawmill located upon the lands in dispute, opened a school in these buildings, and conducted it there during the summer season; and that during the following summer they also conducted their school in those buildings. The proofs show that no rent was required from them for the use thereof. During the summer of 1905 the defendants conducted their’ school in a cottage, which they rented for the purpose, and also in the old sawmill. It is conceded that neither during the duration of the contract, nor at any subsequent time, did they erect any building in Avalon in compliance with the terms of their contract; and further, that after the summer of 1905 the carrying'on of the school was permanently abandoned.
The construction put upon the agreement by the learned vice-chancellor was that tire sole obligation which it imposed upon the defendants as a condition to their right to a conveyance of the land in dispute was to conduct a summer school at Avalon, bona fide, during the period specified in it. His conclusion 'that
The portion of the decree appealed from by the complainant should be reversed and a decree entered in conformity to the prayer of the complainant’s bill.