| N.J. | Oct 11, 1917
Lead Opinion
The opinion of the court was delivered by
The fundamental question in this case is one of equitable jurisdiction. The litigation grows out of an agreement made between the parties to this suit, on the 26th day of February, 1913. The complainant being seized of lands at the corner of Highland avenue and the boulevard, in Jersey City, New Jersey, entered into an agreement on the above date with the defendant, to erect an apartment-house on a part thereof; under the terms of the agreement the complainant conveyed the lands to the defendant and also gave the defendant certain moneys, the lands to be reconveyed to her on completion of the building and payment thereof, tire cost to be ascertained by an accounting to be made by the defendant. The defendant, having erected and completed the apartment-house on part of the land, sold and mortgaged other parts, in accordance with the terms of the agreement, retained title to the remainder and «collected rents from apartments when rented. The defendant, having failed to render
It may be conceded that a court of chancery having once ae
The rule to be applied was succinctly stated by Vice-Chancellor Peed, in the case of Stout v. Phœnix Assurance Co. of London, 65 N. J. Eq. 573, in these words: “A court of equity in this state can deal with legal questions onty, as far as their decision is incidental or essential to the determination of some equitable question. Merely because a court of equity has acquired jurisdiction for one purpose, it is not empowered to retain the case for complete relief.” Chief-Justice Beasley, speaking for this court, said: “It is not true, by any means, that when a court of conscience has acquired cognizance for one purpose, it thereby acquires cognizance over the entire controversy for all purposes.” Lodor v. McGovern, 48 N. J. Eq. 279.
The principle is further illustrated in our courts in the cases of Little v. Cooper, 10 N. J. Eq. 273; Red Jacket Tribe v. Hoff, 33 N. J. Eq. 441.
The Subject is discussed, the principle illustrated and applied in many cases and by text-writers, such as 1 Story Eq. Jur. ¶ 72; Pom. Eq. ¶ 181; 10 R. C. L. 374 ¶ 123.
The extending' of the jurisdiction of chancery so as to 'include all the points in controversy, rests somewhat in the discretion of the chancellor, especially so where the rights involved grow out of other contracts. In this case tire defendant has an adequate and complete remedy at law, for all the items involved under the two former contracts, including damages for their alleged breach. The court of chancery cannot retain jurisdiction for the purpose of granting a purely legal remedy or to try a claim for unliquidated damages. Trotter v. Heckscher, 40 N. J. Eq. 657; Phillips v. Pullen, 45 N. J. Eq. 157.
The bill of complaint in this suit was filed April 22d, 1915. The present Chancery act (P. L. 1915 p. 184 ¶ 8), by which a juiy trial shall be deemed to be waived, unless demanded in the pleadings, does not apply to this case. Ibid. ¶ 12.
We, therefore, think that the master was right in confining
It is next urged that the defendant should not have been regarded as a mortgagee in possession, to the extent of disallowing it any compensation for services rendered to eoifiplainant for renting the apartments under the authorization contained in a letter dated June 24th, 1913, after November 1st, 1913.
It is sufficient to say on this point that the ruling of the master is amply sustained by the authorities: Clark v. Smith, 1 N. J. Eq. 137; Elmer v. Loper, 25 N. J. Eq. 482; Vanderhaise v. Hugues, 13 N. J. Eq. 410; Moore v. Cable, 1 Johns. Ch. 388; 2 Jones Mort. ¶ 1114.
The third point is without legal merit, it requires no discussion.
The next three points involve a construction of the clause in the contract, which provides that the defendant is “to receive for its entire compensation for its services in so doing (i. e.. building) a sum equal to ten per cent, of the entire cost of such building and to complete the same by October 1st. 1913,” the entire cost of the building, including the ten per-cent, compensation, shall not exceed forty-two thousand dollars ($42,000). The master allowed the defendant the sum of three thousand four hundred and seventy dollars and fifty cents ($3,470.50), ten per cent, on the'cost of the building, for its services in constructing the building, under this clause in the conti’act.
The appellant now claims that in addition thereto the master should have allowed a proportion of the salaries paid by the defendant to its officers and office employes, to its president, Mr. Beaumont, at the rate of nineteen dollars and twenty cents ($19.20) per day; to its secretary, Mr. Bowan, at- the rate of thirty-five dollars ($35) per week; to its messenger, or office boy, Mr. Stanley, at the rate of eighteen dollars ($18) per week; while supervising or superintending the construction of the buil cling.
Also, it is contended by the appellant that the master should have allowed ten per cent, for services performed, on the cost of financing the apartment-house, amounting to nine hundred dollars ($900). But disbursements in connection with the mortr
The reasoning of the master is quite satisfactory in the memorandum filed by him in the court below, excluding these various items. The contract provides for no- independent supervision. The defendant cannot charge the complainant with a proportion of the salaries that it pays its officers for supervising or superintending the building. The defendant is the contracting party; it had a right to employ whoever it chose- to superintend the building on its part, the work of the laborers employed by it. So, with the other items enumerated above, such as telephone calls, not allowed by the master, they were office charges of the defendant corporation; they were not costs and expenses of the building. So, the tools used in the construction of tire building, they were a part of the equipment of the contractor — a contractor, when he agrees to build must in the absence of a contrary agreement, furnish all the tools and necessary appliances for the work contracted, to be done.
Objection is also made to an allowance of a counsel fee. of fifteen hundred dollars ($1,500) to the complainant (P. L. 1910 p. 427); permits the allowance of a counsel fee by the chancellor of such amount as shall seem to him reasonable and proper. After examining the record in this case, which is voluminous, involving a large sum of money, we cannot say that a counsel fee of such an amount was either improper or unreasonable.
The decree of the court of chancery is affirmed, with costs..
Concurrence Opinion
(concurring with modifications).
The complainant by a letter dated June 24th, 19lá, addressed to the defendant authorized it
*339 “To run all apartments, making such arrangements as in your judgment may seem advisable. Also such other .arrangements as may be necessary In connection with the furnishing and running of apartments, such cost as may be incurred thereby to be added to the contract allowance.”
This separate agreement manifestly authorized the defendants to find tenants and to furnish the apartments, the cost of which was made subject to the ten per cent, allowance. The word “cost” must refer-to the furnishings, and expenses of running the apartments. The master allowed the cost of painting, janitor’s wages, coal and gas, nine refrigerators and window shades, but eliminated all cost which arose subsequent to the 1st day of November, 1913, when he said the building was completed and that thereafter the defendant was not entitled to ten per cent, on any furnishings or expenditures upon the ground that the building being completed, the defendant was a mortgagee in possession. If it be granted that the defendant was a mortgagee in possession, it was, nevertheless, entitled to continue its account until the property was turned over and could not be deprived of the benefit of the written contract that it was to be paid ten per cent, upon the cost of the furnishings. It is impossible to tell from this account what proportion of the furnishings'were allowed; none appear in this account except the refrigerators at $197 and the window shades at $178, whereas the total cost of the furnishings was'$1,716.08. These furnishings were not a part of the original contract, and it would make no difference whether they were furnished after the completion of the building or before, they were to be paid for with ^the addition of ten per cent, on their cost, and I do not see upon wliat theory we can take a part of such furnishings and include them in this account and exclude the balance to be a subject of future litigation.
I think that either the subject-matter of this latter contract should lie wholly eliminated with a. statement that it is not to be included in the decree, or the whole amount should be included, and, therefore, the decree should be modified to this extent. I vote to affirm with this modification.