author: .Grey, V. C.

text:
    Eliza M. Hires v. William H. Hires.
    [Filed March 16th, 1901.]
    1. A divorce cannot be granted where any element in the proofs necessary to sustain the decree is wholly dependent upon the uncorroborated testimony of the complainant.
    2. Quwre. Whether mere abstention by a husband from the exercise of his marital rights is willful, continued and obstinate desertion, within the meaning of the New Jersey statute, where he continues to live in the same house with the wife, though occupying a separate sleeping-room, and pays, though in parsimonious fashion, for the support of the wife.

      On bill, answer and proofs.
    • Mr. Edward Dudley, for the complainant.

      Mr. Howard O arroto, for the defendant.
   .Grey, V. C.

(orally).

This bill is filed for a divorce because of the alleged desertion of the wife by the husband and for alimony for the support of the wife and a minor child. ' The residence of the parties in this state is satisfactorily proven. The marriage, which took place in 1877, is also proven without dispute. The parties lived together as man and wife from 1877 to 1896, apparently without contention. Two children were born of the marriage; at the time of the alleged desertion the youngest was about six or seven years of age and the oldest one about nineteen or twenty.

The proofs submitted by the complainant to sustain the alleged desertion consist wholly of her own testimony and that of her daughter, the oldest of the two children. No other testimony is offered. The defendant offers no testimony at all. The cause must, therefore, be determined upon the sufficiency of the testimony offered on the part of the complainant.

It is shown that, in 1896, the husband, though he continued to live in the same house, separated himself from his wife, by taking a separate room, and having his belongings removed to it; She swears that since that time he has neither exercised his marital privileges, nor solicited her to permit him to exercise those rights. She further testifies that the husband, though continuing to live in the same house, refused to speak to her. Upon further examination, however, this element of proof weakened somewhat, for it appeared that this refusal was not absolute and invariable, but only occasional. It might have been the result of a disagreeable temper, and certainly did not amount to an exhibition of a fixed purpose, on the part of the husband, to have no further communication with his wife. This mode of life continued from 1896 until the month of November, 1899, when the wife says that the husband went away from Camden to Malvern, Pennsylvania, where he has since resided without her or the younger child, the older one having meantime married. The wife admits that during the whole period she has had the use and occupancy of their home and its equipment, bought for her by her husband, and that.he has paid $30 per month for the support of herself and her minor child. The wife claims that this is wholly inadequate for their support.

The married daughter was the only other witness. She lived at home during the alleged period of desertion, from 1896 up to the month of November, 1899, when she married and left her father’s house. She testifies that, in 1896, her father directed her to prepare for him a separate bedroom from her mother. This she did, and moved into it his personal belongings. She says that from this time until she left her father’s house he slept apart from her mother in the room so prepared for him. What happened in her father’s house after that time, as to detail of their living, the daughter says she knows only from what her mother and sister told her.

The allegation is that this proof shows a willful, continued and obstinate desertion by the husband of the wife for the period of two years.

So far as desertion is claimed to have been indicated by the proof of insufficient support,, it goes but a very little way. If the question to be determined was the reasonable adequacy of the amount of $30 per month, with relation to the yearly salary of the husband ($1,500 per year), it would probably be held that the allowance was an insufficient sum. That is not, however, the question at issue. The character of the support given by the husband is relevant in desertion cases as an indication of a willful intent to abandon the wife. The husband intending to cast her off, refuses to support her. But in this case the husband has continuously made provision for the housing and maintenance of the wife and child, rather niggardly in amount, but not so insufficient as to indicate an intent to abandon her or to'drive her away.

Although the parties lived, up to a very recent period, in the same house, there is no proof of any declaration of a purpose by the husband to separate himself from the wife, or to discard her. They lived in the same house, dined at the same table, sat in the same room, but occupied different bedrooms.

Whatever there is in the testimony which is evidential of a desertion appears to depend upon the proof of the absence of sexual intercourse. Accepting the wife’s testimony, it is shown that there was none for some four years; that this was her husband’s choice, and that,, during that time, there was no solicitation on his part. The case, on this phase of it, seems to present the question whether mere unexplained abstention on the part of the husband from sexual intercourse with his wife, though living in the same house with her and supporting her, amounts to a desertion under our statute.

There is no reported ease in this state which passes upon this question. In Anshutz v. Anshutz, 1 C. E. Gr. 163, on bill filed for alimony only, there is a dictum that where the husband refuses to have any intercourse with his wife, or to make any provision for her maintenance, it may be held an abandonment, under the act giving alimony, although the parties continue to live under the same roof. In Weigand v. Weigand, 14 Stew. Eq. 208, also under the Alimony act, the case presented the question whether the adultery of the husband, committed continuously in his own house, was an abandonment of the wife, when she, for that reason, left his house and went elsewhere, and it was held that this was an abandonment by him. In that case Ihe conduct of the husband was so gross that there was little difficulty in holding that he had driven his wife awaje

In the case now under consideration the proofs do not exhibit any refusal of sexual intercourse, but simply an abstention therefrom, and without showing any attending circumstances which might indicate the reason therefor.

Mr. Bishop (1 Bish. Mar. & D. § 1677 ei seq.) declares that sexual intercourse is of the very essence of the, marriage contract. That a man may lawfully obligate himself to do for a woman, not his wife, every other act incident to the marriage relation, such as supporting her, or her children, retaining her in his house, and to be kind to her, and she may bind herself in a corresponding way to him. There is but one thing which is special to marriage, and is lawful in no other relation. The learned author lienee draws the conclusion that

“the married party who permanently and irrevocably withdraws from all that is peculiar to marriage, whatever incidentals he may adhere to, commits matrimonial desertion.”

It is not, in my view, necessary, in this case, to determine this question. All the proof which goes to show the essential fact of non-intercourse conies from the lips of the complaining wife only. There is no attempt at corroboration other than that given bj the testimony of the daughter, that during the period that she lived at home, from 1896 to 1899, when she married and moved away, her father and mother did not sleep in the same room. From the time she went away, in 1899, to the time of filing the bill, on February 3d, 1900, there is no other proof on the subject than that given by the wife. The husband went to Malvern to live in 1899, but from the time of the marriage of the daughter until he went to Malvern he and his wife lived in- the same house, and -there is no other testimony than hers that they slept in different rooms.

Nor is there, in the testimony of the daughter, any proof of such an antipathy on the part of the husband towards the wife that it may reasonably be inferred that they had no sexual relations. There is no proof of continuous quarrels, or of any course of conduct which indicated a permanent sense of aversion on the part of the husband towards the wife. The reason for their separation is wholly unexplained, even by the testimony of the wife. All that is given by her is the fact that they had no sexual relations.

The testimony of the daughter is only measurably corroborative of that of the wife as to the relations of the parties during the period after 1896, when she did live at her father’s house. All she proves is that the husband and wife occupied different sleeping-rooms. This does not prove that there was no sexual intercourse. Such separate sleeping arrangements may have been the result of choice, for various reasons other than a denial by the husband of access for sexual intercourse. To give this latter color to such testimony we are wholly dependent upon the testimony of the wife, the complainant in the cause.

The rule is conclusively settled in this state that a decree for divorce will not be granted where the establishment of some essential element necessary to the relief sought depends upon the uncorroborated testimony .of the complainant. The cases are collated in Herold v. Herold, 2 Dick. Ch. Rep. 214. In that case there was a denial by the husband of the testimony of the wife, and it was held that more than the uncorroborated testimony of the wife was required. The rule is, however, the same in ex parle cases, where there is no denial of the testimony of the complaining party. When the complainant comes into court and invokes the affirmative action of the court in her behalf, she must, in case she asks a divorce, support her own testimony, as to essential points, by corroborative evidence. Tate v. Tate, 11 C. E. Gr. 55; Pullen v. Pullen, 2 Stew. Eq. 542, and other cases which were ex parte. This rule has also been upheld in the court of appeals, in an ex parte case, where there was no denial by the defendant of facts sought to be established by the uncorroborated testimony of the complainant. McShane v. McShane, 18 Stew. Eq. 341. In that case the court of appeals held that “a divorce for desertion will not be granted upon the unsupported testimony of the petitioner as to his residence hi this state and as to the causes of the alleged desertion.” In the present case the only ground upon which a decree for desertion could possibly be awarded is the denial by the husband to the wife of rights to which she is entitled under the marriage contract. Proof of that denial rests entirely upon the unsupported testimony of the wife. Under these circumstances, I must refuse a decree. The complainant’s bill will be dismissed, but without costs. In view of the proofs, I think it should be without prejudice to the complainant, if she should file another bill for desertion, to allege in that bill, as the period of desertion, either the whole or part of the period referred to in the proofs in this cause.

I will advise an order dismissing the bill of complaint, with that limitation.


source: Caselaw Access Project

author: Grey, Y. C.

license: Public Domain

text:
    Charles C. Keen v. The Maple Shade Land and Improvement Company.
    [Filed March 19th, 1901.],
    1. Where the whole frame of a bill of complaint is based upon charges of fraud, and defendants are brought in solely upon such charges, and the proofs fail to show any fraud, the bill must be dismissed, even if there be some evidence of an injury because of mistake.
    2. Where damages and not restoration are sued for, because of an alleged contract obtained by an unauthorized misrepresentation, the action must be brought at law.
    On bill, answer and proofs.

      Messrs. Qarr & Stackhouse, for the complainant.

      Mr. David J. Pancoast, for the defendant.
   Grey, Y. C.

(orally).

The complainant in this case, Charles C. Keen, files his bill against the defendant, the Maple Shade Land and Improvement Company, and the individual directors of that company, at the time of its dissolution, praying that they may be dealt with as trustees, and may be decreed to pay to him the amount expended by him on account of the consideration of a contract for the sale of a lot of land, which, he says, he entered into with the Maple- Shade company, with interest on the amount of his payments.

The circumstances under which the complainant claims he is entitled to this relief, as stated in his bill, are that the Maple Shade companj, in July, 1896, pretended and represented itself to be the owner of lot Ko. 154 in a plan of lots at Maple Shade, and entered into a contract for the sale of that lot to him (Keen); that he (Keen), pursuant to the contract, paid to the company, in the aggregate, $175 before the time set for the payment, according to the terms of the contract, of'the total amount of $250. The bill further alleges that afterwards Keen was informed by one of the directors of the company that lot 154 was not owned by the company, but was owned by one James White, under a previous conveyance made by the company. The complainant then alleges that he demanded a return of the money, which the Maple Shade company refused to repay. He states that he has complied with the agreement, and that the company has refused to comply with it, and that, since his payment'to the company, it was, on March 3d, 1897, dissolved, on its own application, by filing a certificate in the secretary of state’s office; that, at the time of the dissolution, the other defendants were its directors; that they thereby became trustees; that, as such trustees, they were charged with the duty of applying the assets in payment of the debts of the company, of which the complainant says his debt was one; that, in spite of that fact, the directors, acting as trustees, divided the assets between the stockholders, and refused to pay complainant’s debt, so that no assets remain, and he sets up the rescission of the contract on his part.

•The answering defendants deny any fraud whereby the complainant was induced to make any purchase, and say that the company never sold, or agreed to sell, the lot to him; that he never paid any money on account of it, but that they state in their knswer that ■ one Dumaris, without authority from the company, and pretending to act as its agent, undertook to sell the lot as agent, but without its authority or -consent and approval, and delivered to the complainant a contract by filling in the blank form, one of the agreements of the company, which was signed by the president and secretary; that, at the time, of the making of the agreement, the lot was not the property of the company, but it belonged to White, a fact well known to Dumaris. They admit that the company was dissolved as set forth in the bill, and that, at the time of the dissolution, it was possessed of considerable assets. They also set up that the bill of complaint exhibits no ground for relief in this court, and they pray they may be entitled to the same benefit as if they had demurred to the bill.

The facts as they have been presented, and as I find them, are that the company was the owner of a plot of ground at Maple Shade, which had been divided into lots, and that, before Dumaris was authorized to malee any sales for the company, some of the lots had been conveyed to the individual owners, one of which was lot 164, which had already been, in fact, conveyed to White.

I am satisfied that there is no element of fraud in the case. Such fraud as is alleged in the bill of complaint necessarily involves an intent to cheat, because the charge is that the company, pretending to own the lot, contracted to sell it to Keen, when it had theretofore sold it'to White. The company, as such, never in any way acted in the sale of this lot to Keen, or in contracting to sell it to Keen, unless it acted through Mr. Dumaris. The proofs show that Dumaris was its agent,’to be sure, but they also show that Dumaris was its agent to sell its lots, and that, at the time he got authority to sell the company’s lots, he was instructed that the company had previously sold some of its lots, and among them this lot No. 154, which it had conveyed to Mr. White. The testimony fails to show that either the company or Mr. Dumaris had any intent to cheat Mr. Keen. The proofs do not lean that way. Mr. Dumaris, who had been authorized by Mr. White also to sell his lots, including No. 154, made a mistake. He supposed, when he arranged with Mr. Keen to sell him lot 154, that it belonged to the company, but it was a mistake .which was peculiar to himself, in which the company did not participate. Payments were afterwards made and forwarded to the company, and several receipts were given which are expressed to acknowledge, payments to' the company on account of lot Ho. 154. But it has been shown that these receipts were given without any knowledge that lot 154 was one of those lots which had theretofore been conveyed to Mr. White. These receipts were the result of a mistake which Mr. Vanderslice and the other officers of the company have fully explained, .and the proof is clear that these moneys were not receipted for with any purpose whatever to cheat the complainant. It has been conclusively shown that none of these moneys finally passed to and became assets of this company, as this bill alleges. They did not go into the final division of the company’s assets, and were not expended to pay the company’s debts, or in the final distribution of its assets to its stockholders.

The whole case shows that Mr. Dumaris plainly made a mistake in inserting lot 154 in the contract as an undertaking by the company to convey the lot to Keen. In doing this he was outside of the authority given him by the company. The only phase of the question presented which tends to support any claim by the complainant is the contention that the company is called upon to answer for the mistake that Dumaris made, because he claimed to be acting in and about the conduct of this company’s business. Mr. Keen is plainly not at fault. But he has not, in his bill of complaint, put his case upon any allegation of mistaken agreement. The charge in the bill is that the company made the contract as part of a fraudulent contrivance to cheat Mr. Keen, by pretending to own the lot and agreeing to convey 'to him, and taking his money therefor, when the lot, in fact, belonged to somebody else. The weight of the evidence wholly refutes this charge.

It is not a ease for restoration of purchase-money, because of fraudulent contract, for the reason that the company neither authorized the contract nor committed any fraud. Nor did it either receive the purchase-money or insist upon performance of the contract. The case made by the bill fails.

If there be any claim by the complainant against the Maple Shade company it must be one purely for damages for an unauthorized misrepresentation by its agent. No such case is alleged in the bill, and all the elements which might go to support it appear only in the proofs. It would be an injustice to the defendant to consider a case so entirely outside of the allegations of the bill. Such a case is also open to the fatal objection that the remedy must be sought in the.law courts. Krueger v. Armitage, 13 Dick. Ch. Rep. 357, approved by the court of appeals in Polhemus v. Holland Trust Company, 14 Dick. Ch. Rep. 93.

The only case •which can be considered is that presented by the bill of complaint. This the complainant has failed to sustain by his proofs. The bill must be dismissed, with costs.


author: Urey, Y. C.

text:
    Augustine B. Repetto et al. v. Mary C. Baylor, trustee, &c.
    [Filed April 3d, 1901.]
    1. Where a contract is sufficiently expressed in writing to satisfy the statute of frauds, and is of such character that performance of all its terms by both parties can be substantially directed, this court will not refuse to enforce it, because, at the stage when the court’s aid is invoked, there has not been a partial performance by either party.
    2. Where the contract of sale gives within certain defined limits, the right of selection of the lots to be conveyed to the proposed vendee, it is not for this reason incapable of being specifically performed. The rule id eertum est quod eertum reddi potest applies with regard to the selection of the lots.
    3. Where the vendor in the contract sought to be enforced is a trustee, who, under the trust, has no power to make the contract, this court will not decree its performance.
    On amended bill, motion to dismiss, &c.

      Mr. Clarence L. Cole, for the complainants.

      Mr. Jolm J. Crandall, for the defendant.
   Urey, Y. C.

The original bill of complaint in this cause was filed specifically to enforce a contract, made by the defendant, Mary C. Baylor, trustee, &c., by which she agreed to convey to Antonio Repetto a large number of lots of land “situate, &c., in Atlantic county.”

The complainant Augustine Repetto is the assignee of Antonio Repetto, the proposed vendee named in the contract. The defendant is the vendor.

The bill was demurred to, and the demurrer was sustained— first, because, as the allegations of the bill were framed, the contract under which relief was sought did not designate the lands with sufficient certainty to satisfy the statute of frauds; second, because the bill alleged that Augustine Repetto, the complainant, selected certain lots, while the contract limited the choice to Antonio Repetto, the contracting vendee.

When the demurrer was sustained, the complainant amended his bill, stating the lands to be conveyed with certainty, and annexing a copy of the contract and map designating them. The defendant now moves to dismiss the amended bill, upon notice and reasons given under rule 213.

The effect of notice to strike out under that rule is the same as a demurrer to the bill for the causes noticed, the purpose of the rule being to provide a quick method of presenting a criticism of a pleading and determining its justice.

The first cause set up in criticism of the bill is that it states only a breach of an executory contract, and seeks its specific performance without showing that either party has done any act in whole or partial performance of it. Where the contract is sufficiently expressed, in writing, to satisfy the statute of frauds, and is of such a character that performance by both parties , can be substantially directed of all its terms, this court will not refuse to enforce it because, at the stage when court’s aid is invited, there has not been a partial performance by one party or the other. There are many cases within the letter of the statute of frauds in which there has been a partial performance by the party seeking relief in this court, and they are entertained here, because to refuse relief would promote, rather than defeat, the success of a fraud. There is, however, a well-defined equitable jurisdiction for enforcing the specific performance of contracts, irrespective of their partial performance. The principle is elementary, and is recognized in all treatises upon equity jurisdiction. Pom. Pq. Jur. §§ 105, 108, 867, 868.

The second objection to the bill of complaint is that the contract for the sale of the lands on which the suit is based does not define with sufficient certainty the lands agreed to be conveyed.

The contract (copy of which is annexed to the amended bill) shows that the defendant agreed to convey to Antonio Repetto all these one hundred and thirty-eight lots, &c., situate, &c.,

“the same to be chosen and designated by the said Repetto, and said .lots to remain as now marked upon map made by Morris Hillman, and on file, &c., a copy whereof is now in possession of the said Repetto, and marked as aforesaid, provided the said Mary G. Baylor has not heretofore conveyed the same to other persons. Should the title to any of the said lots be in any other persons as above provided then said Repetto shall have the right to designate other lots in the same blocks, to take the place of such lots not owned by the said Mary 0. Baylor. That the map in the possession of the said Repetto shall for the purpose of description of the said lots be considered and is hereby made a part hereof.” ,

i The bill alleges that at the time of making the contract, Antonio Repetto, by Mrs. Baylor’s direction, marked on the map the one hundred and thirty-eight lots referred to in the contract; that subsequent investigation disclosed the fact that Mrs. Baylor had, prior to the daté of the contract, conveyed several of the selected lots, and that Antonio Repetto thereupon chose other lots from the same blocks to make up the deficiency, and Mrs. Baylor was notified of the new selection.

On this motion the facts alleged in the bill of complaint must be taken to be true. It therefore appears that’the one hundred and thirty-eight lots, which were originally the subject-matter of the contract, were, by the parties at the time of its making, selected, agreed upon and indicated on a map, a copy of which was in possession of Antonio Repetto, one of the contractors, which copy it was agreed should, for the purposes of description of the selected lots, be deemed to be a part of the contract. This was a sufficiently definite selection and designation of the lots agreed to be conveyed. The mere form in which the selection ■was expressed, whether by written out mention in the body of the contract, or by marking on a map specified in the written contract to be a part of it, is of little significance. It is also insisted that there was no final agreement of the minds of the parties on the particular lots which should pass by the contract, because there was a right of future selection reserved only to-Antonio Repetto, 'in case it should be found that Mrs. Baylor had sold any of the one hundred and thirty-eight lots originally chosen. Uncertainty of description of the subject-matter of the contract of sale is held to be avoided where the contract itself gives the right of choice to either party. Fry Spec. Perf. § 329. Id cerium est quod certum reddi poiesi applies with regard to the description of the subject-matter. Ilid. 328. Indeed, the argument here made in criticism of the contract was advanced and overthrown in Jenkins v. Green, 27 Beav. 437, where the contract was to demise a farm containing four hundred and thirty-seven acres, “except thirty-seven acres thereof;” there being neither specification of which thirty-seven acres Were to be excepted, nor mention of which party should make the selection, Sir John Romilly, master of the rolls, held the contract to be enforceable specifically; that where the matter was presented before the lease was executed, the selection should be made by the lessor; if after the lease was made, then the right of selecting would rest in the lessee. In the contract and map exhibited in the amended bill it appears that certain ascertained lots were originally selected by both parties, and that there was an agreement of both that in case any of them had been previously sold, one party should choose an equal number from those indicated in the same blocks to take their places. Here was an exact designation of a number of lots, and an agreement whereby in case any selected could not be conveyed for want of title, one party only should choose enough other lots from defined limits to fill the number. The minds of the parties had come to a final agreement upon the subject-matter of the sale, the vendor agreeing, in a named contingency, that the vendee should select what a part of it should be. Nothing remained to be clone between them as negotiating contractors. It was always in the power of either to enforce the contract—the vendor by requiring payment of the price, the vendee by selecting the number of lots necessary to supply the deficiency and requiring conveyance.

The third objection is that the lots selected in the place of those previously sold were not identified in the contract. This criticism is answered by the previous discussion, and the showing that the contract and map enabled the identity of the lots to be conveyed to be definitely ascertained, the vendor and vendee both agreeing that the vendee, to the extent and in the case named, should select them. There is no principle of law which prohibits such an agreement, where the items of property from which the selection is to be made are indicated with such accuracy that, by the selection, the portions to be conveyed can be made certain.

■The fourth objection is that the lots Nos. 35, 37 and 39, in block 8, are not within any provisions of the contract, as by the statements of the bill no lots in block 8 were mentioned in the contract, and by the contract all lots not within the blocks originally marked are excluded from the contract.

This objection is a mistake of fact. The bill itself (page 3) mentions, as among the lots selected as the original one hundred and thirty-eight, • “lots Nos. 1, 3, 5, 7, 9, 11, 13 and 15, in block 8.” Those lots are also designated on the map annexed to the bill, and made part of the contract by reference. The statements of the bill show that Mrs. Baylor had previously conveyed from block 14 so many lots, that in that block there did not remain a sufficient number to make up the quantity which she agreed to convey to Repetto, and to make up this deficiency, lots Nos. 35, 37 and 39, of block 8, were selected by the latter. The provision for new selection allowed this to be done, it declared that

“should the title to any of the said lots be in other persons as above* provided, then said Repetto shall have the right to designate other lots in the same blocks to take the place of such lots,” &c.

The clause dealt with the lots as a class and with the blocks in the same way. If “any of said lots,” not any lots in a certain block, should be 'owned by another than Mrs. Baylor, then Repetto might designate other lots in the same blocks, that is, in those blocks named in the agreement, not necessarily in those blocks in which the non-owned lots were situate. Any other construction would operate to deprive the vendee of some of his total number of one hundred and thirty-eight, because if more than half of the lots in any one block were not owned by Mrs. Baylor, there would not be enough in the remaining half to make up the deficiency, and the vendee, not having recourse to any other block, would be unable to have one hundred and thirty-eight, his total number.

■' The fifth objection is that the trust set forth in the bill shows that if Mrs. Baylor, the trustee, made a sale, she must, under the terms of the trust, require payment in cash, while the contract set up and sought to be enforced in this suit, gives a credit of three years as to more than two-thirds of the purchase-money. The terms of the trust relating to the power of sale, as stated in the bill, are “to grant and convey the said premises, or any part thereof, to any purchaser, for any price, and execute a good and sufficient conveyance in the law for the same, and to receive the purchase-price therefor, without liability.” &c., of the purchaser.

If, by the terms of this trust, the trustee had no power to make the contract here set up, so that its enforcement would amount to a breach of the trust, this court will make no decree compelling its performance. Lew. Trusts *423. The words of the trust authorize the trustee to convey, for any price, and to receive the same, but do not give to her any power to arrange terms of postponed payment of that price, or to accept a mortgage or anything else than money in satisfaction of it. This is a matter of substance, for a sale upon credit postpones the payment of the price, and subjects the trust to the possibility ^of loss by reason of depreciation of the value of the mortgaged premises. A trustee cannot make contracts in excess of the power given him by the terms of his trust. Oceanic Steam Navigation Co. v. Sutherberry, 16 Ch. Div. 236.

The principle is akin to the declaration of the courts that a power to sell merely does not confer the power to mortgage. Haldenby v. Spofforth, 1 Beav. 394; Page v. Cooper, 16 Beav. 396; Ferry v. Laible, Stew. Eq. 575. This last ease was reversed on an appeal, but upon other grounds than the principle here stated. This rule has been relaxed where the settlor’s purpose, as expressed in the trust, is to sell to raise some named fund which he has charged on the estate (Lord St. Leonards, in Stroughill v. Anstey, 1 De G. M. & G. 645); or where it can be better answered by a mortgage than by a sale, and a mortgage is not contrary to his intent (Loebenthal v. Raleigh, 9 Stew. Eq. 169); or where a mortgage to raise funds for repairs was necessary to save the estate. Schulting v. Schulting, 14 Stew. Eq. 131.

In the case in hand the power given to Mrs. Baylor, it must be noted, is to sell for a price, and contemplates a final disposal, once for all, of the property in consideration of a price to be received. There is neither in the recital of the trust deed, nor in the bill of complaint, a showing that the purposes of the trust require that a credit, secured by mortgage, payable years after the sale, should be given, nor does it appear that the safety of the estate compels a sale on such a credit. The expressions of the trust indicate the settlor’s purpose, finally, to dispose of the lands, out and out. They consist of outlying sand-beach lots, a class of property well known to be variable in value. The settler may have had in view the dangers which might arise from the giving of an extended credit because of the possible depreciation of these trust lands, and may, for this reason, have omitted to give to the trustee a power to arrange terms of credit for the purchase-money. Whether this was contemplated or not, the power to give a credit is neither expressed, nor, necessarily, to be implied from the terms of this trust, and no more authority can be ascribed to the trustee than is within one or the other of these categories.

This being the situation of the trustee, this court- is now asked to compel her to perform a contract to extend credit, which the deed, under which she holds, does not authorize her to do. Uothing has been paid, no possession has been given, and no one appears to have changed position in any particular; the whole matter is purely executory. In a case where large expenditures had been made on the strength of an agreement entered into by a trustee in excess of his authority, Vice-Chancellor Little, of the duchy of Lancaster, refused to compel performance, and on appeal the master of the rolls and the lord justices of appeal unanimously sustained his judgment. Oceanic. Steam Navigation Co. v. Sutherberry, ubi supra. Sir John Leach, in Evans v. Jackson, 8 Sim. *217, refused to decree a specific performance where the agreement of the trustee was in excess of the power.

Eor this reason the complainant’s contract of sale cannot be decreed to be specifically performed, and the defendant’s objection to the bill of complaint must be sustained.

T will advise a decree accordingly.


author: Obey, V. C.

text:
    Richard D. Norton v. John Sinkhorn et al.
    [Filed April 6th, 1901.]
    1. No personal judgment or decree will be made in a suit under the act of March 30th, 1892 (G-en. Stat. p. 2078), to secure payment to laborers, &c., engaged in the performance of work, &c., upon any public improvement in municipalities of this state.
    2. The procedure under that statute is limited solely to ascertaining the rights of the parties in the lien thereby created on the contract price, and ordering payment therefrom accordingly, and is in the nature of a proceeding in rem.

    3. The court of chancery has no jurisdiction of a purely legal claim for the payment of unliquidated damages.
    4. An answer and cross-bill filed in a suit in this court under the above-named statute, setting up such a claim for unliquidated damages, will be stricken out as seeking to introduce matter not within the jurisdiction of this court.
    On bill, answer and cross-bill, and motion to strike out parts of answers and cross-bill.

      Mr. Linton Satterthwait, for the complainant.

      Mr. Edwin Robert Walker, for the defendants.
   Obey, V. C.

(orally).

This bill is filed by Richard D. Norton (a subcontractor, who undertook to deliver stone on a road being built under the Road Improvement law, in the county of Mercer) against John Sink-horn and Charles B. Walton, partners, &c., contractors with that county for the building of the road.

The bill is filed under the act of March 30th, 1892 (Gen. Stat. p. 2078), to secure payment to laborers and others employed upon and furnishing material in the performance of any work or public improvement in cities, counties or municipalities of this state. The complainant seeks to impound the money due from the county on the contract, and to have a' decree that a portion of it be applied to satisfy his claim for hauling done on the road on his subcontract with Sinkhorn. Sinkhorn answers, and sets up, as part of his answer, an allegation that Norton, in doing the work for which he claims to hold the fund, so delayed his performance that Sinkhorn was subjected to considerable loss in completing the work. Part of the damage was demurrage which Sinkhorn was obliged to pay the Pennsylvania Railroad Company, in order to obtain delivery of the stone which Norton had agreed to cart. There are two suits—one upon the Windsor and the other upon the Edinburg road.

In one of these suits Sinkhorn files not only his answer, setting up the defences adverted to, but also a cross-bill, claiming that the amount of loss to him, by reason of the non-performance on the part of Norton, was such that he was obliged-to pay a greater sum than, on that contract, is coming due to Norton, and for that greater sum he prayed, by way of cross-bill relief, a decree, affirmative in its nature, against Norton.

Norton now comes into court, the record being in that condition, and moves, under rule 213, to strike out from -these answers so much of them as sets up the defence mentioned, and also the whole of the cross-bill which seeks affirmative relief against him.

The statute under which this bill is filed has. been passed upon in the case of Delafield v. Sayre, 31 Vr. 449, by the court of errors. That court declared that the act contained no provision for a personal judgment against the contractor as a debtor, and in this followed the New York interpretation of the same statute, which was enacted in that state before it was passed here. Snyd. Anno. Mech. Lien. L. 146; Scerbo v. Smith, 16 Misc. (N. Y.) 102. In the case of Garrison v. Borio, 47 Atl. Rep. 1063, in this court, the same course was taken, in accordance with the declaration of the court of errors. There are some phrasings of the statute which, to some extent, imply that under it, there may be an order for a personal judgment. Section 70 provides that the plaintiff must make all parties who have filed claims parties defendant, and that, as to all parties against whom no personal claim is made, the plaintiff may, with the summons, serve a notice, &c., stating briefly the object of the action, and that no personal, claim is made, and that all parties who have filed claims under the act may, by answer in such action, set forth the same, and the court in which the action is brought may decide as to the extent, justice and priority of the claims of all parties to the action.

The next section (71) provides that the court in which the action is brought shall determine the amount due from the debtor to the contractor and from the contractor to the respective claimants, and, at nearly the end of the section, it provides that the'judgment rendered under this act may be endorsed by execution.

If the proceeding is one wholly in rem against a fund already in the municipal treasury, and to determine only what disposition shall be made of that fund, there seems to be but little reason that the summons should give notice that a personal ■ claim is made against the defendant, or that there should be any provision for a judgment enforceable by execution, because if the fund only is the subject-matter of the jurisdiction, and the suit is only to fix the mode in which that is to be distributed, there is no occasion whatever for an execution. The court of errors noted the discrepancies which .are indicated upon the face of the statute, and which have,’ in part, been occasioned by a too close following of the New York act by the draftsman of the New Jersey act.. It may be true that the declaration by the court of errors; in the case of Delafield v. Sayre, that the statute did not provide for a personal judgment against the contractor as a debtor, was obiter dictum, yet it is an interpretation of a doubtful statute by the highest judicial authority by unanimous vote. It has established a mode of procedure under the statute, and has been followed in enforcing its provisions. I am quite unwilling, in this court, to consider the matter as still unsettled. The cross-bill is wholly dependent for its support upon an interpretation of the statute that there may be in this .proceeding a personal decree against the subcontractor for the balance due. from him. As above shown, this construction cannot be maintained. The cross-bill should be stricken out.

The question remains whether the portions of the answers which set up a claim against the complainant for damages suffered by Sinkhorn, by reason of the complainant’s partial failure to perform his contract, should be stricken out. This relief can be granted only upon a showing that the matter challenged might have been successfully excepted to under the old form of procedure. Doane & Co. v. Essex Building Co., 14 Dick. Ch. Rep. 142; Brill v. Riddle Co., Atl. Rep. 223.

It appears that this claim stands, to a considerable extent, if not wholly, upon-a sum paid, by way of demurrage, by Sink-horn to the railroad company. Sinkhorn claims that the delay in removal of material was occasioned by Norton’s neglect to cart it away from the railroad station according to his contract. It does not appear that there was any definite contract by Norton, whereby the sum of damages, which might result to Sinkhorn by reason of the delay, was in any way liquidated. Nor does it appear that Norton was obliged to recognize the definite arrangement for the same, by way of demurrage, contained in any contract for carriage of material between the railroad company and Sinkhorn. Norton is not claimed to have been a party to that contract. If Sinkhorn suffered a damage because Norton failed to remove the material from the railroad station, that is a matter which is yet to be adjusted—first, in the establishment of the obligation of Norton to pay-for losses suffered because of the delay, and secondly, by the establishment of the amount which Norton ought to pay. It is a legal claim for an unliquidated sum of damages made by Sinkhorn against Norton. No equitable element appears in the transaction set up in the pleading. The face of the pleadings, therefore, shows that there is a seeking, in this court, to set up a claim for unliquidated damages, by way of answer, in reduction of the complainant’s demand in this suit.

It is quite well established that this court cannot entertain a claim for the recovery of unliquidated damages. The court of appeals, in Trotter v. Heckscher, 13 Stew. Eq. 656, and in Alpaugh v. Wood, 18 Stew. Eq. 153, has so declared in .eases which, in their facts, somewhat resemble this case. In each of those cases, as in this, the damages presented were alleged to have been suffered by reason of breaches of the contracts, on which the complainant founded his suit. The declaration of the court of appeals was “a purely legal demand for unliquidated damages is not cognizable in a court of equity.” Alpaugh v. Wood, 18 Stew. Eq. 157.

Counsel for the defendant Sinkhorn also contends that if it be held that this court cannot entertain jurisdiction of these unliquidated damages which he desires to present, on general principles, yet he insists that the court may consider the question under the special authority conferred by the provisions of this act, and particularly section 70, which declares that the court shall decide as to the extent, justice and priority of the claims of all parties.

The statute cannot be 'construed to confer such jurisdiction. If it be correctly held that the statute contemplates a proceeding solely for' the purpose of ascertaining what payments should be made out of a contract-price, constituting a fund, and that no personal judgment can be awarded, as I -have already declared, then the provision by which the court is authorized to decide, as to the extent, justice and priority of claims, applies only to the court’s action in relation to the subject-matter under the jurisdiction of the court, which is the claims of the parties upon the contract-price to be paid out to him. No claims can be entertained for anything else than to establish or refute the right to share in the division of that money.

The portions of the answers which set up the claim for unliquidated damages must be stricken out as impertinent, because those portions seek to introduce matter not germane to the pending controversy, and not cognizable in this court.

I will advise an order that the portions of the pleadings specified should be stricken out. The complainant is entitled to costs.


author: Grey, Y. C. '

text:
    William Riddle v. Matilda R. C. Keller et al.
    [Filed April 10th, 1901.]
    1. A contract made on Sunday is void ad initio, and cannot be ratified.
    2. A subsequent admission of the maker that he had preeedently executed it, is not such a re-creation of the contract as to give it efficacy.
    3. Nor is such a declaration, coupled with a denial of the binding effect of the instrument, a sufficient acknowledgment to justify a commissioner of deeds in endorsing a certificate that the maker acknowledged that he delivered the instrument as his voluntary act and deed, &c.
    1. In a case where an officer empowered to take acknowledgments, happened to be present and to overhear a dispute in which the maker of an agreement admitted that he had executed it, but denied its binding effect, and the officer stood by and listened, but did not address the maker or disclose his official character to him, the officer cannot rightfully certify that the instrument in question was by the maker - acknowledged before him, &c.
    On bill, answers and proofs.
    The complainant files his bill praying that a deed made by one Matilda R. C. Keller to Henderson Synamon, conveying lands in Atlantic City, may be declared, to be void, and .that Mrs. Keller may be decreed specifically to perform an alleged agreement, set out in the bill, to convey to the complainant the premises described in the deed.
    The bill of complaint sets forth that Mrs. Keller was the owner of a tract of land in Atlantic City, which, it is alleged, she put into the hands of Hannah E. Kelly, a real estate agent vof that place, with full power and authority to sell and dispose of the same; that, on the 7th day of October, 1899, the complainant purchased the tract from Mrs. Keller, .by an agreement, in writing, made with Hannah E. Kelley, as agent for Mrs. Keller, at the price of $50,000, and paid on account thereof $100. The agreement was recorded in Atlantic county clerk’s office on the 10th day of October, 1899. The purchase-money was to be paid at a later date, in part in cash and in part by mortgage. A copy of the agreement is annexed to the bill and made part thereof. The bill further states that the complainant attended at the time and place named for the performance of the agreement, with the cash and the mortgage, ready to perform it on his part, and that neither Mrs. Keller nor her agent appeared; that, after making the agreement and neglecting to perform it, Mrs. Keller, by a deed of later date, conveyed the premises to the defendant Henderson Synamon, a cousin of Hannah E. Kelley, which conveyance, the bill charges, was made with actual knowledge by him of the existence of the agreement for the sale to the complainant, and after record of the agreement in the county clerk’s office. The hill further charges that the conveyance from Mrs. Keller to Synamon was procured to be made by Hannah E. Kelley after she had agreed, as agent for Mrs. Keller, to convey the premises to the complainant, and further charges that Hannah E. Kelley is interested in the title with Synamon, and that the conveyance from Mrs. Keller to Synamon was not in good faith, and was for the purpose .of defeating the rights of the complainant in the premises. The bill prays that Mrs. Keller’s deed to Synamon may be decreed to be void, and that she may be decreed specifically to perform her alleged agreement, set out in the bill, to convey the premises to the complainant.

      There are two answers to the bill—one by the defendant Henderson Synamon, who admits that he is the present owner of the property; denies that the complainant purchased the same as stated in the bill, and charges that the supposed agreement for sale, referred to by the complainant, was made on Sunday, October 8th, 1899, and was purposely dated on the 7th, to avoid the effect of'the laws of the State of Hew Jersey making void instruments made on Sunday., The answer further alleges that on a date subsequent to the time of the said agreement of sale, the complainant' met the defendant Synamon by appointment, informed him that he did not want the premises and subsequently negotiated with Synamon for the purchase of the land, recognizing and treating the defendant Synamon as owner.
    The defendant Mrs. Hannah E. Kelley also answers the bill, and denies that she had any authority from Mrs. Keller to sell and dispose of the land, and denies that she ever assumed or attempted to exercise any such authority; denies that the complainant purchased the land by the agreement named, and that he paid $100 on account, and avers that the agreement was, as stated, made on Sunday, October 8th, 1899, and dated the previous day, to avoid the effect of the law. The defendant also avers that she was’ induced to sign the agreement by fraudulent statements and deception on the part of the complainant, to the effect that the agreement, was simply an acknowledgment to give to the complainant all the preference which she' could control in the sale of the land, and that she signed the agreement without reading it; and further contends that as soon as she discovered that she had signed the agreement as agent for Mrs. Keller, she notified Riddle that he had deceived her, and demanded a return of it, tendering to him the check for $100 which he had given, but the complainant refused to ae'cept the check or to return the paper.
    "When the cause came up for hearing the complainant offered^ as his proof of his case, interrogatories addressed to, and answered by, Mrs. Matilda R. C. Keller, which it was agreed should be taken as testimony given in open court, and the deposition of the complainant, William Riddle, taken out of court, in the presence of counsel for defendants, upon examination and cross-examination. The cause was argued upon the pleadings and these proofs only, the defendants offering no proofs.

      Mr. Thomas E. French and Mr. Bindley M. Gamson, for the complainant. ■

      Messrs. Repetto é'Repetto, for the defendants.
   Grey, Y. C. '

The whole frame of the bill of complaint in this case, both in allegation and prayer, is based upon the claim that the defendant Mrs. Keller has, through her authorized agent, the defendant Hannah E. Kelley, contracted to convey the land in question to- the complainant' for a bargained price; that the latter was ready to perform, but that Mrs. Keller had failed to keep her engagement. The prayer is that Mrs. Keller may be decreed specifically to perform her alleged contract, with the added prayer for general relief. The testimony is submitted by complainant in a somewhat peculiar way. It consists wholly of the written deposition of the complainant and the answers of Mrsi Keller to interrogatories and cross-interrogatories and the deposition of the complainant, William Kiddle, taken before the hearing. Ho oral testimony was offered by either side, and the hearing was simply and only the arguments of counsel for the several parties. Under such circumstances, it is manifest that the ease which the parties believed they were presenting, and which they intended to try, was set out in the pleadings, to which only the evidence was directed, and which asked a decree that Mrs. Keller be adjudged specifically to perform her alleged contract.

The agreement in question was drawn by the complainant himself, and was, at his instance, made on Sunday, October 8th, 1899, but, for the purpose of evading the operation of- the law declaring contracts made on Sunday to be void, it was dated October i'th, 1899. That it was wholly void, because it was made on Sunday, is established law. Gennert v. Wuestner, 8 Dick. Ch. Rep. 303, and cases there cited. Being void, it was incapable of ratification. Ibid. 305. But it is claimed that this defect can be, and was, remedied by a subsequent acknowledgment, which the complainant testifies was made by Hannah E. Kelley, at the Broad street station, in Philadelphia, on October 9th, 1899. The circumstances under which this alleged acknowledgement took place were these: The complainant had asked Hannah E. Kelley where Mrs. Keller resided, and had been refused the information.' He subsequently ascertained that Hannah E. Kelley had gone, into Pennsylvania, probably to see Mrs. Keller. The complainant, taking with him a Miss Saylor, who was a commissioner of deeds for Hew Jersey, residing in Pennsylvania, went to Broad .street railroad station, in Philadelphia, and there waited Hannah E. Kelley’s return. When she appeared, the complainant testifies the following colloquy took place:

“I said, ‘Mrs. Kelley, have you seen Mrs. Keller?’ She said, ‘Oh! there is a man who got ahead of you and bought’the lot.’ I said; ‘Indeed.’ She said, ‘Yes, he got there about an hour ahead of me.’ I said, ‘What about the agreement, Mrs. Kelley.’ I produced the agreement from my inside pocket. She grabbed it and crushed it in her hand.' I ejaculated sharply, ‘Don’t destroy that,* and she released it. I said, ‘Mrs. Kelley, I am surprised. Do you mean to say that your agreement with me is not binding on Mrs. Keller?’ She said, T do not acknowledge the agreement; I don’t know of any such agreement; give me that paper back.’ I said, ‘Which paper?’ She says, ‘That agreement.’ I then said, ‘You do acknowledge that there is an -agreement?’ She says, ‘Yes, but it is not binding.’ ”

The complainant further testifies as follows:

“‘You acknowledge this agreement, do you not?’ and I showed her the original agreement, and she said, ‘Yes.’ ‘I said, ‘You signed it, did you not?’ and she said, ‘Yes.’ I turned to Miss Saylor and said, ‘Mrs. Kelley has acknowledged this agreement, witness it.’ ”

On cross-examination, the complainant gave the following testimony: .

“Q. Will you please state in what shape Mrs. Kelley acknowledged the instrument. Please state what occurred at that time, and state in what manner Mrs. Kelley acknowledged this agreement?
“A. Orally; I said to Mrs. Kelley, standing at the Western Union Telegraph Office in the Broad Street Station, ‘Mrs. Kelley, you acknowledge this to be your signature?’ ‘Yes, I do,’ she said. I said, ‘Mrs. Kelley, you know you made this agreement with me?’ She said, ‘Yes, I did.’ I turned to Miss Saylor and said, ‘Have you heard Mrs. Kelley acknowledge this agreement?’ and Miss Saylor said, ‘Yes.’
“Q. Was this'before or'after Mrs. Kelley had attempted to destroy the. agreement?
“A. After, I am positive it was after, because she attempted to grab the instrument when she first met us on the sidewalk.
“Q. Now, Mr. Biddle, isn’t it a fact that all through this transaction Mrs. Kelley has, by words and actions, indicated and treated this agreement as null'and void?
“A. It is a fact that Mrs. Kelley has treated this agreement as null and void ever since she visited Harrisburg, ■ and met me in the Braod Street Station.” .

. Subsequently, when asked, “Q. The evening that you and Miss Saylor met Mrs. Kelley at Broad street station, what did Miss Saylor do?” the complainant answered, “Stood by and listened.”

An acknowledgment of the execution of- a written instrument is, in its nature, a judicial act. The statute on the subject contemplates the acknowledgment before the- officer, by the party who makes the instrument, not only that he signed it, but that he admits its binding force upon’ him. The ‘ certificate must declare that, the officer informed the party of the contents, and that the latter acknowledged that he signed and delivered the instrument as his voluntary act and deed. The form of words in which the acknowledgment may be manifested by the .party varies greatly in actual practice, but it is essential that there should be an admission by the maker of the present validity and binding force of .the instrument. A declaration by the party admitting the previous execution of - the instrument, coupled with án open and strenuous denial of its' binding effect, is not such an acknowledgment as the statute requires. In this case it is quite apparent that Mrs. Kelley was neither informed of the contents by the officer, nor did she make any declaration of her knowledge of the instrument, which was equivalent thereto. Her acknowledgment amounted only to this, that she had previously executed the instrument in question, but she denied, persistently and openly, its binding effect upon her. Here was a denial, in the presence of the certifying officer, that the instrument was her deed, and a denial that she delivered it as such. The transaction also lacked another incident necessary to the validity of an acknowledgment. There was no recognition by Mrs. Kelley that she was acknowledging the instrument, and it is quite evident that she did not even know that she was in the presence of an officer for the purpose. The complainant, who was interested in validating the instrument, and not the officer, conducted the colloquy. The certifying officer was conveniently near, but did nothing to indicate to Mrs. Kelley'that the latter was’making an acknowledgment.

An officer capable of taking an acknowledgment, who happens to be present when parties are disputing as to the validity of an agreement, cannot rightfully certify an acknowledgment because the maker of the instrument,’ in the course of dispute, mentions, passim, that she had signed it, yet all the while disputing its binding effect, and, in fact, seeking to destroy it. Such a transaction is a long way from that sort of re-creation of a void instrument which is necessary in order to give it new life and efficiency. None of the cases cited support such a contention. Those cited by the complainant, to the effect that an acknowledgment would make a void instrument valid, do not support that contention. They show that the act of subsequent acknowledgment was so conducted as to be a creation de novo. They are, and, in the nature of the case, must be, decisions that a previous attempted execution which is void, does not prevent a subsequent execution which is valid. No case is cited where an after acknowledgment or other admission of the previous execution of an instrument, void because made on Sunday, has been held to have validated the void instrument. All that Mrs. Kelley did on Monday was to acknowledge that she had previously made the agreement. This making was on Sunday, and therefore the agreement was void. Nothing that she did on Monday was in the nature of a declaration that she then acknowledged the agreement as of binding force.

It must be held that the agreement, on which the complainant bases his case, was made on Sunday; that it was therefore void and incapable of ratification, and‘that the supposed acknowledgment on Monday was not a re-creation and new delivery of the agreement, but simply an admission of its previous execution on Sunday.

If, however, it should, for the sake of the argument, be assumed that the void agreement could be, and was, validated by the colloquy between Hannah E. Kelley and the complainant, in the presence of the commissioner, on Monday evening, October 9th, at the Broad street station, the agreement cannot be enforced.

The bill of complaint alleges an agreement by Mrs. Keller, through her authorized agent, Hannah E. Kelley. The evidence offered to show that there was an agency authorizing Hannah E. Kelley to bind Mrs. Keller by a written contract of sale is wholly insufficient, under the rulings of the court of appeals, in Lindley v. Keim, 9 Dick. Ch. Rep. 419, and Scull v. Brinton, 10 Dick. Ch. Rep. 489. Mrs. Kelley explicitly denies that she authorized the contract to be made. The only proof that she did authorize that contract is the testimony of Mr. Riddle, that she told him that Mrs. Keller’s letter had instructed her to sell the lot, naming price and terms of sale. The cases cited have settled the law in this state to' be, that such instructions mean no more than an authority to the agent to negotiate a sale by finding a purchaser, but do not empower the agent to bind the principal by a written contract. Besides, the declarations of the agent cannot establish the fact of the agency. Gifford v. Landrine, 10 Stew. Eq. 127; affirmed on appeal, Ibid. 628.

The complainant contends that even if Hannah E. Kelley was not authorized by Mrs. Keller to make the contract set forth in the bill, yet,, having executed such an agreement in Mrs. Keller’s name, without her authority, the law will raise a presumption that Hannah E. Kelley contracted on her personal responsibility, intending to bind herself. Many cases sustain the proposition that one who, without authority, pretends to -act for another, is thereby himself bound.

There are several reasons which prevent the application of this rule to the cause now in hand. In the first place, the complainant has not framed his bill of complaint upon any such case as he now, in argument for the first time, sets up as a ground for relief. Nowhere in the bill is it claimed that Mrs. Kelley had, without authority from Mrs. Keller, represented herself to be the latter’s agent, with power to bind her by contract of sale. Nor is it alleged that the agreement was either in fact or in law, Hannah E. Kelley’s contract. Nor is there any allegation that she is the owner of the premises, nor prayer that she may be decreed to convey them. None of the defendants were invited into court-to respond to any such matters. This basis of complaint was introduced to the attention of the defendants by the argument of complainant’s counsel. It is, at most, wholly a matter of proof, foreign to the issues presented by the pleadings, and evidently was not within the contemplation of the pleader who drew the bill of complaint. In Vansciver v. Bryan, 2 Beas. 434, Chancellor Green declared the rule to be well established that the court cannot 'notice matter, - however clearly proven, 'of which there is no allegation in the pleadings. A party who has presented his case in his bill of complaint, and failed to substantiate it by evidence, cannot change his position and place his claim for relief upon matters incidentally disclosed in the proofs. Pasman v. Montague, 3 Stew. Eq. 393. In Midmer v. Midmer, 12 C. E. Gr. 548, the bill of complaint was based upon an allegation of a trust arising by express agreement. The bill gave no intimation of any other trust. The attempt was made to prove a resulting trust in another person, and to claim relief on that ground. The court of appeals held unanimously that it -was rightfully refused.

In the second place, if it be admitted "that Hannah E. Kelley’s conduct operated in law to charge her personally with the obligation of an agreement to convey, all claim to enforce such an obligation is defeated by the fact that it was made on Sunday. The transaction was opened, negotiated, put in evidence by a written agreement, and closed, by its delivery, all on Sunday. The alleged agreement of Hannah E. Kelley arising by operation of law is void upon this ground of objection, precisely as is the alleged contract of Mrs. Keller, on which this bill of complaint has been drawn. Neither could be ratified, neither was re-created or contracted anew by the transaction of Monday night, October 9th, in Broad street station, for the reasons hereinbefore fully stated.

I will advise a decree that the complainant's bill be dismissed, with costs. ,


author: Grey, V. C.

text:
    Charles R. Myers v. Eliza J. Metzger et al.
    [Filed April 13th, 1901.]
    • l.j When a deed is made conveying a lot -of land for $14,000 and coincidently, for the same consideration, a separate agreement is made by the grantors in the .deed to convey to the grantee an adjoining piece under certain circumstances, the deed and the agreement will be considered in’this court as one contract, one consideration operating as the purchase-money of both.
    2. Such an agreement is not a mere proposal or option, from which the owner of the land may withdraw at his choice, keeping the consideration. It is the purchase of a 'right upon compliance with the terms named, to buy the lands referred to in the agreement.
    .3. An agreement of the owners of a certain lot that they will not sell it without first notifying an adjoining owner of the intention to sell, and giving him the privilege of buying the ground at a fair market price, becomes enforceable when the owners of the lot, without notifying the adjoining owner, cause a sale of it to be made by partition proceedings in this court. Such proceedings are a manifestation of an intention to sell.
    4. What is a fair market price is a matter discoverable by testimony on the point. . It can be made certain by evidence, and its uncertainty is therefore no ground on which to refuse a decree for performance.
    On- bill; answer' and stipulation as to facts. -
    This bill is filed by Charles Myers to compel specific performance of an agreement, made between the executors and devisees of Emanuel Metzger and one Mrs. Ellen Wright, a .copy of which is annexed to the bill of complaint, and which is in these words and figures:

      “Martha E. Metzger, to Ellen E. Wright. Agreement;

    “Whereas Mrs. Ellen Wright has recently purchased from the executors of Emanuel Metzger, deceased, a tract of land fronting 500 feet on the easterly side of New Jersey Ave., Atlantic City, State of New Jersey, for the sum of $14,000. In consideration of said purchase, we, the executors of the said Emanuel Metzger, do hereby agree with the said Ellen E. Wright, her heirs and assigns, that we will not sell any portion of the ground oceanward from the above mentioned tract without first notifying Mrs. Wright, her heirs or assigns, of our intention and giving them the privilege of buying the ground at a fair market price, also that we will not build or allow to be built any building whatsoever upon the said ground while under our control or held as part of the estate of the said Emanuel Metzger.
    Witness at signing,
    “Jesse N. Roke,
    “V. E. Cerchambault.
    “Maetha M. Metzgee,
    “John Hunter,
    “Dec. 9, 1884. Executors.”

    “Emma C. Metzgee,
    “Mary C. Gould,
    “J. Clifford Gould,
    “Eliza J. Metzgee,
    “Kate E. Metzer,
    “Martha M. Metzgee, Jr.
    “Ree’d & Recorded Jan’y 1, 1885.
    “A. L. Down, Olerh.”

    The complainant alleges that the agreement in question was made coincidently with, and attendant upon, a deed made by the executors and devisees of Metzger to Mrs. Wright, by which they conveyed to the latter the premises beginning in the easterly line of Uew Jersey avenue, four hundred and fifty feet southerly from the southerly line of Oriental avenue, and extending southerly five hundred feet, and then easterly, between parallel lines that width, one hundred and seventy-five feet. That was the inland or southern portion of the ground, and the piece included within the agreement lies between that last-described 'piece and the Atlantic ocean. After the agreement had been made with Mrs. Wright, the land which the Metzgers had conveyed to her, and also her rights, under the agreement, in the oceanward lot, came, by intermediate conveyances and assignments, to the complainant in this cause, the deed to him being made.in 1895. The oceanward lot remained in the ownership of the Metzgers, without change of title, from the time of the making of the agreement, in September, 1894, up to the year 1899. In that year, Miss Eliza J. Metzger filed a bill in chancery for the partition of their lands, making parties thereto her brothers and sisters and their husbands and wives, and such proceedings were had in that case that the ocean-ward lot, described in the agreement, was sold by a master and bought by Miss Eliza J. Metzger as a separate lot. The complainant (Myers) appeared at that sale, and gave notice of the equities which he claimed resided in him under the agreement.
    Miss Eliza J. Metzger was one of the Metzger devisees, was herself a party to the agreement, and was the complainant in the partition suit. After she had bought the property at public auction, the complainant (Myers) claimed that the time had arrived when he was entitled to have a performance of the agreement, by a conveyance to him of the property at a fair market price. That price, he claims, may fairly be fixed at $20,000, and he has offered to take a conveyance of the property from Miss Metzger and the other parties interested for $20,000. They refused to convey, first, on the ground that he had no right to such a conveyance under the agreement, * * * because it was without consideration; and secondly, that the sum offered ($20,000) was far below the value of the property at a fair market price.

      Mr. Clarence L. CoUj for the complainant.

      Mr. Allen B. Endicotl, for the defendants.
   Grey, V. C.

(orally).

In the argument of the cause counsel for the defendants contends that the agreement is of no binding force, because there was no consideration for it. On examination it appears that it was made coincidently with the deed for the upland piece, of which the lot in question is the ocean front. The stipulation shows that the agreement was made on the 9th of December, 1884, and that the land in the deed was coincidently copveyed to Mrs. Wright. It is recited in -the agreement tha.t, in consideration of the purchase of the land named in the deed, the executors of Metzger and .his heirs, and the other parties signing the agreement, agree that they will not sell any portion of the ground oceanward from the tract, conveyed by the deed, without first notifying Mrs. Wright, her heirs and assigns, of their intention, and giving them the privilege of buying the ground at a fair market price.

Here is a clear showing that the consideration named in the deed for the upland lot was the inducement which led to the making of the agreement to convey the lot to the oceanward of it. The stipulation shows that the transaction was one and the same, although evidenced by different instruments. The deed and the agreement were given for the same consideration. The rule is well settled that where several instruments relate to each other, and are made by the same parties, at 1he same time,'touching the same or kindred subject-matter, they should be dealt with and considered as one instrument, unless something on the face of them indicates a different intent. That situation existed in this case, and makes it plainly apparent that the consideration paid for the deed was the consideration for the agreement. That was clearly the intent of the parties. The result, then, is that, by the purchase-money paid for the deed, the grantee therein (Mrs. Wright) bought the land described in the deed and also bought whatever rights came to her under the agreement. It therefore appears that there was a consideration for the agreement. The principle of such contracts is discussed in McCormick v. Stephany, 48 Atl. Rep. 25. It is not a mere option from which the owner of the land may withdraw at his* choice, keeping the consideration, but it is a purchase of a right, upon compliance "with the terms named, to buy the lands referred to in the agreement.

The defendants contend that there is no description of the ground to be conveyed. The description of land, by a contract for conveyance, does not need to be set forth with the precision of metes and bounds and monuments. If the contract designates the land with such reasonable certainty that a person may, by going upon it, ascertain its bounds from the contract, it is sufficient. That characteristic appears in this agreement. There’ is a reference to the purchase, by Mrs. Wright, of a tract of land fronting for five hundred feet on the easterly line of New Jersey avenue, in Atlantic City. It is easy to locate that tract. The lot dealt with in the agreement is all the land lying oceanward of the land purchased by Mrs. Wright. There would be no difficulty in locating the oceanward lot by a person of ordinary intelligence, certainly none if it were located by a competent surveyor.

The further criticism is made that there’ is no time fixed for the performance of the agreement. There is no definite day named for its performance. But there is a clear undertaking that Mrs. Wright, the purchaser of the landward lot, should not be subjected to the great injury which would result if the oceanward lot were sold to someone else, and her lot thus cut off from the ocean view and breezes, without giving her notice of the purpose to sell and the privilege of buying the oceanward lot at a fair market price. That means that the Metzgers held the property at the call of Mrs. Wright and her assigns whenever they (the Metzger party) were ready to sell. This, it seems to me, is the first question of any significance in this case—whether, when this bill was filed, the time had arrived when Mr. Myers, holding Mrs. Wright’s equity in the oceanward lot, had the right to demand a conveyance at a fair market price. The agreement of the parties was that they would not sell any portion of the oceanward lot without first giving to Mrs. Wright, or her assigns, the privilege of purchasing it at a fair market price. . The proceeding by which Miss Eliza J. Metzger, the complainant in the partition suit, compelled a sale, is claimed by Mr. Myers to have been an exhibition on the part of the Metzgers of a willingness to sell the lot. There is no pretence that they notified Mr. Myers, Mrs. Wright’s representative, nor is there any claim that they notified anybody.- The defendants deny that the partition proceeding was a sale. • They -insist that, in the final result, the proceedings in the partition suit' did not change the interests of the parties, and that they are now the same as they were before the sale. The proceedings-in the partition suit are, by the stipulation, submitted as evidence in this cause. They indicate the wish of the applying party (and that applying party ivas Eliza J-. Metzger, one of the parties to the-agreement, and the person -who subsequently purchased the piece of land in question) to have the land divided,’ or, if it could not be divided, that it be sold. All the Metzger family appéar to have assented to this, and the lot was sold under the partition decree. The contention of the defendant-is, that although the parties asked that the land should be sold, and the court decreed that it be sold, and the -master reported that it Avas sold, and a deed has been executed in accordance with that decree, conveying the lot in question, yet still the land was not sold. That position cannot be maintained. The effect of the public auction by the - master was a sale, not only in law, but in fact, for the reason that when the master put the property up at public sale, he left it to the choice of the world as to who should be the purchaser. It was an-act which came about at the instance of Miss Eliza J. Metzger, who was the complainant in the partition suit, to which the others of the contractors appear- to’ have assented, and they have since accepted the benefits of it. -The master stood for them, and Avas acting for them, and- his sale gave, as stated, an opportunity to anybody -in the world to become the purchaser upon bidding enough. That subjected Mr. Myers to the danger, if the lot had been bought without notice of his claim, of losing his right to purchase. He protected himself by attending the master’s sale, and giving public notice of his equity. This, of course, was not necessary as against -Miss Metzger, because she was a party to the contract held by Myers when she became the purchaser under the master’s sale. The true intent of the contract is, that Mr. Myers’ right to purchase accrued whenever the Metzgers concluded to sell. That conclusion was manifested when the contractors in the contract actually did sell the land under the partition proceedings, and it could not afterwards be disavowed. That Miss Metzger bought in the property herself, was purely fortuitous. The title was taken out of all of the parties and vested in her, and what she subsequently chose to do with it cannot enter into the question here in dispute. She became the purchaser by bidding more than anybody else, but she took as if she were an entire stranger, and, when she acquired title, could deal with it as she chose. There was such an intention to sell that Mr. Myers might assert his privilege to purchase at a fair market price.

It is claimed on the part of the defendants that the remedy of the complainant, if there was a sale, is at law. The remedy at law Avould be wholly inadequate. Under the contract the complainant has the right to purchase the lot lying to the ocean-ward of his previous purchase. His suit would enable him to recover only such damages as he suffered by reason of the fact that he Avas not first notified by the contractors of their intention to sell the land, and that he was not given the privilege beforehand of buying the ground at a fair market price. Such damages would be wholly inadequate to satisfy him for the loss of his right to purchase the lot. He is the owner of the land lying landward of the piece covered by the contract. The lot under the contract is the piece over which he must have his access to the ocean. It is perfectly evident that this property between his land and the ocean was especially valuable to him, because of its adjacency to his other lands and of his means of access therefrom to the ocean. These characteristics created substantially all the value of the contract to him. A suit for damages would not get him the land, but only compensation for the damage that he suffered by non-performance of the contract. The injury to him by being cut off from the ocean view and access would be continuous in its nature. He would not only lose this use of the lot for his other property, but the OAvaership of the land in somebody else would subject him to the danger of the erection of some obstruction on the oceanward lot, which would completely cut him off from the ocean. In my view no damages Avould, in any adequate way, satisfy him.

The other question raised by the bill and disputed in the answer is, what is a fair market price for the property? I have not discussed this question. It is a matter for further inquiry and the taking of further proof. Nothing in the stipulation enables me to decide it, and I am not willing to pass upon it at all in the present phase of the case. It is a matter sharply limited to one point, and for its proper exposition calls for testimony of witnesses on the spot. It should be referred to a master to ascertain and report what, on the day when Mr. Myers demanded conveyance, was a fair market price for the lot of land lying to the oceanward of the 'tract of land beginning in the easterly line of New Jersey avenue, four hundred and fifty feet southerly from the southerly line of Oriental avenue, and extending southerly five hundred feet, then easterly, between parallel lines of that width, one hundred and seventy-five feet. The last-described tract of land is the property of the complainant. The oceanward tract is the lot here in suit, purchased by Miss Metzger at the master’s partition sale. The master may take such testimony as either party may see fit to offer upon the single question of the fair market price of the oceanward tract, at the time of Myers’ offer to purchase it. All further equities are reserved until the coming in of the master’s report.

I will hear counsel upon the selection of the master.