77 N.J. Eq. 33 | New York Court of Chancery | 1910
The bill'alleges that complainant entered into a contract with defendant Noxris on July 22d, 1908, whereby Norris sold and agreed to convey to Straus certain farm lands 1
“containing eighty-two acres more or less, bounded on the north by the Chapel Hill road and lands of Corcoran and east by lands of Parmly and on the south by Navesink road and on the west by the New Jersey Southern R. R. for the price of $37,500.”
It is admitted that if the allegations of the bill are true, Straus .is entitled to recover, but it is said he should have sued at law and not in. equity.
It is well settled that in actions for specific performance the vendor may recover the price by suit in this court. The fact that a money judgment is sought is no objection. Moore v. Baker, 62 N. J. Eq. (17 Dick.) 208. It has also been decided that where a representation false in fact has been made, there is this difference between actions at law and suits in equity. At law, to maintain an action of deceit, the representation must (inter alia) be shown to be not only false in fact but false to the knowledge of the person making it, in other words, fraudulent. Cowley v. Smyth, 46 N. J. Law (17 Vr.) 380; Eibel v. Von Fell, 63 N. J. Law (34 Vr.) 3; 64 N. J. Law (35 Vr.) 364 Equity will relieve if the representation be false in fact, though no conscious fraud be perpetrated. Eibel v. Von Fell, 55 N. J. Eq. (10 Dick.) 670; Dubois v. Nugent, 69 N. J. Eq. (3 Robb.) 145.
The bill alleges that the representation was made either fraudulently, for the 'purpose of inducing complainant to pay a higher price, or through defendant’s mistake.
It is conceded by demurrant’s counsel that this court has -general jurisdiction in cases of fraud. The rule is thus stated by
Then the bill alleges that the price is still in the hands of the agent. This court is able to stay enough of the price in its hands to indemnify complainant, while at law the suit would be only against the principal for damages. No question is made of the jurisdiction to decree an abatement of the price when the acreage is materially less than that called for by the agreement.