In Lindley v. Keim, 54 N.J. Eq. 418; 34 Atl. Rep. 1073, it was established that authority to sign an agreement for the sale of lands may be conferred by parol, and "that such authority to sign an agreement for the sale of land could be established either by proof that it had been expressly conferred, or by proof of circumstances from which its grant may be reasonably inferred.Summary of this case from National Home Builders, Inc., v. Stokem
S. H. & M. P. Grey, for complainant. D. J. Pancoast and Peter L. Voorhees, for defendants executors of O'Reilly. T. B. Harned, for defendants Lindley and Adams.
(Syllabus by the Court.)
Bill by Jacob Keim against Daniel Lindley, Alfred Adams, Jr., and the executors and devisees of Patrick O'Reilly, deceased, for the specific performance of a contract to convey land. Bill by same complainant against James A. Griffith, Edward H. Hall, and others for like relief. Decree for complainant. Relief granted.
S. H. & M. P. Grey, for complainant.
D. J. Pancoast and Peter L. Voorhees, for defendants executors of O'Reilly.
T. B. Harned, for defendants Lindley and Adams.
PITNEY, V. C. These are bills for the specific performance of two several contracts to convey lands, brought by vendee against vendor. The contracts are in writing, signed by an agent of the vendor. Several defenses are set up, of which the principal are the following: First, that the agent acted without authority; second, that the complainant has lost whatever right he ever had by long delay in coming to the court; third, that circumstances have occurred since the making of the contracts which render it inequitable to enforce them specifically; and, fourth, as to some of the defendants, that they are purchasers for value without notice of the contracts. I will consider these in the order above indicated.
1. As to the authority of the agent. There are two contracts. The first is as follows: "Atlantic City, N. J., March 25th, 1880. $25.00. Received of Jacob Keim the sum of twenty-five dollars on account of the purchase money of lot of land fifty feet in width adjoining on the rear the land now owned by said Jacob Keim, which land fronts on New York avenue, in Atlantic City, aforesaid, and which strip to be conveyed runs the entire length of the said land of said Jacob Keim. The purchase price is to be twenty-five hundred dollars. Deed to be made and delivered so soon as practicable; not longer from the present time than one month. Said land to be conveyed belongs to Patrick O'Reilly, for whom the undersigned is agent. J. J. Gardner, Agt." The second is as follows: "Received, Atlantic City, N. J., October 29th, 1881, of Jacob Keim, the sum of five hundred dollars on account of the purchase money of a certain tract of land situate in said city as follows: Beginning at a point in the southeasterly line of Pacific avenue at a distance of two hundred feet northeastwardly from the northeasterly line of New York avenue, and extending thence (1) southeastwardly on a line parallel with New York avenue a distance of one hundred and fifty feet; thence.
(2) southwestwardly parallel with Pacific avenue a distance of one hundred feet; thence
(3) southeastwardly parallel with New York avenue a distance of fifty feet; thence (4) southwestwardly parallel with Pacific avenue a distance of fifty feet; thence (5) southeastwardly parallel with New York avenue a distance of——, to the exterior line (now under water) established in 18— by the riparian commissioners of New Jersey; thence (0) northeastwardly along said riparian line a distance of one hundred and fifty feet; thence (7) northwestwardly parallel with New York avenue a distance of——, to the southeasterly line of Pacific avenue; and thence (8) southwestwardly along said lastmentioned line a distance of fifty feet, to the place of beginning. And also all the addition and accretion to said tract of land, if any, which may hereafter be made on the sea front; it being the purpose of this purchase and sale to include all the land above described, and also all the right, title, and Interest of the grantors and of the estate of the late Patrick O'Reilly, deceased, in and to the accretions to said land which may be made upon the sea front. The balance of the purchase money, namely the sum of ninety-five hundred dollars, to be paid upon tender of a good and lawful deed for said premises, free from incumbrances and opposing or contesting claim of title, with undisputed possession of the same; the grantee to have sixty days' notice of such tender. Including all the land and rights of said estate between Pacific Ave., the riparian line, & beyond N. Y. & Tennessee avenues. John J. Gardner, Agent P. O'Reilly Estate." The question is as to the authority of Mr. Gardner to make these contracts. No express written authority is produced. Complainant relies upon parol authority given before the making of the contracts, and also upon subsequent ratification and adoption. It is well settled that parol authority to the agent is sufficient to satisfy the requirements of the statute of frauds, and that such authority may be inferred and deduced from circumstances and a course of dealing; and that a contract made by an agent without authority may be ratified and adopted by subsequent conduct, and even by mere silence. Pry, Spec. Perf. (3d Am. Ed.) § 509; Pom. Cont. §§ 77, 78; Wat. Spec. Perf. § 243; Whart. Ag. §§ 85-89. As to original authority, an instructive case is Pole v. Leask, 28 Beav. 562, 6 Jur. (N. S.) 1104; 29 Law J. Ch. 888. At page 892, Lord Romilly says: "It is necessary to bear in mind the various ways in which agents are appointed, and the general rules which govern their authority when they are appointed. The common division of the modes by which agency may be constituted is threefold. It is either by writing, or it is by parol, or it is by mere employment. It may also be laid down as a general rule that when the authority is general it will be construed liberally, but also that it must be construed according to the usual course of business in such matters. In the present case we have nothing to do with writing. It is an authority given by parol, and, where it is ambiguous, it is to be construed according to the course of trade in such matters; and where it is unexpressed it is to be ascertained by investigating what was the course of dealing which was pursued between the three several parties to these transactions." These views were adopted by the house of lords on appeal. Id., 33 Law J. Ch. 155, at page 165; 9 Jur. (N. S.) 829, at page 834. As to subsequent ratification, an equally instructive case is Bigg v. Strong, 3 Smale & Gif. 592, 4 Jur. (N. S.) 108; and, on appeal, Id., 983. At page 110, 4 Jur. (N. S.), Sir John Stuart says: "It could not be considered that any express act on his part, such as attaching his signature to the agreement, or any other solemnity by him, after he became privy to the act done by his son on behalf of both, was. essentially necessary. Subject to his right to a reasonable opportunity of expressing his dissent, every additional day and hour of silence after he became privy to the contract operated as tacit acquiescence, and raised the presumption of assent. It could not be said that tacit recognition was insufficient, for if, in perfect silence, he accepted the price to which he knew he was entitled according to the agreement, it could not be said that the assent and recognition were not sufficiently binding. On the other hand, had he silently refused to accept the price, it might have raised a presumption of dissent. Two main elements necessary to constitute a contract were certainty as to the terms and sufficient testimony of assent. It was the established law of the court that a man might adopt a contract which he had not signed, and might give testimony of his assent by acts and conduct as plainly as ty his signature." And, on appeal, Lord Chelmsford (page 983) says: "The evidence was certainly not sufficient to prove any antecedent authority, and the plaintiff must, therefore, rely on the subsequent ratification. Several cases had been cited as to the effect of standing by, but such questions did not depend on there being prejudice or benefit from the conduct of the party standing by; there must be silence, under circumstances which lead to the conclusion of there being assent."
With this brief reference to a few of the authorities, I approach the question of fact whether in this case authority was either given in advance, or the act of the agent was afterwards adopted and ratified. It is not disputed but that Mr. Gardner was the recognized agent of the owners at the dates of these contracts, having, as such agent, charge and care of the lands, collecting the rents, paying the taxes, and so forth; nor is it disputed that he was employed by the owners to find purchasers at a fixed price for the lands in question. To that extent his agency is fully proven and frankly admitted. The precise limit insisted upon by defendants is that he had no authority to conclude a binding contract for the sale of these lands, even at the price and upon the terms fixed by the owner. Let us look at the proofs. Patrick O'Reilly was a retired railroad contractor, residing at Reading, Pa. When Atlantic City was yet in its infancy he became the owner of a considerable tract of land within its limits. This was laid out in streets, conformably to the plan adopted by the municipal authorities, and also in lots shown on a map. Upon each of these lots he himself fixed a price at which he was willing to sell, and wrote it upon the map, and changed it from time to time as the value of the lots advanced. Mr. Gardner was for many years a real-estate agent, doing business at Atlantic City. Some time prior to the year 1870, Mr. O'Reilly employed him to take charge of his real estate there. He gave him a copy of the map of his lands, with prices, and gave him authority to sell any of the lots at the price there named, giving credit upon mortgage for a portion of the purchase price for an amount also fixed in advance by Mr. O'Reilly. This authority was given to no other person or broker besides Mr. Gardner, and he had, by authority, the sole personal care and charge of all the lands, paid and collected rents, and did all repairs to buildings, and grading and filling, looked after the assessment of taxes, and paid the same, either out of moneys in his hands, derived from the sale of lots, or with moneys furnished for that purpose by Mr. O'Reilly. He rendered accounts of these receipts and payments to Mr. O'Reilly. In making sales of lots his practice was as follows: When a purchaser was found, he demanded and received from him a down payment on account of the purchase price, and gave him a receipt for the same, substantially in the form of the contract first above set out, providing for a mortgage when one was to be taken, and giving a short time to each party to complete the contract. This giving of time to complete was important to Mr. O'Reilly, for he was often absent from home, and it also gave the purchaser an opportunity to provide his cashpayment. After the receipt of the down payment, Mr. Gardner himself prepared the deed, and forwarded it to Mr. O'Reilly for execution, reporting to him the sale; and then when the deed came back to him,—as it invariably did,—duly executed, he received the balance of the cash payment, together with the bond and mortgage, if any, caused the latter to be recorded, and forwarded the bond and all the cash—the down payment and final payment blended—to Mr. O'Reilly. Mr. Gardner is unable to recollect that he ever had a case, prior to that here in question, where the contract was not speedily performed, and so is unable to recollect any instance where the fact that a down payment had been taken and a contractual receipt given had been brought distinctly to the notice of Mr. O'Reilly, prior to the present case. In this case he is quite positive that both the down payments mentioned in the receipts were reported with the sales, and accounted for to the owner. None of the sales so negotiated by Mr. Gardner were ever repudiated by Mr. O'Reilly. On the contrary, in one instance, at least, during his lifetime, after Mr. Gardner had negotiated a sale, taken a down payment, and given a receipt for a part of the price of a lot at the price fixed by Mr. O'Reilly, the latter refused a higher offer from another party, and carried out Mr. Gardner's contract. The relations of Mr. Gardner with Mr. O'Reilly, so far as they are to be inferred from the foregoing facts, were well known to the residents of Atlantic City. The complainant himself made a purchase from Mr. O'Reilly of a part of these lands, through Mr. Gardner, in 1873. He made a down payment, and took a receipt from Mr. Gardner as follows: "Atlantic City, Aug. 27/1873. $100-Received of Jacob Keim the sum of one hundred dollars on account of purchase money of a lot of land in Atlantic City, New Jersey, owned by Patrick O'Reilly, of Reading, Pennsylvania; said lot being in front of the Chester County House, bounded on the north by Pacific avenue, on the west by lands of George A. Binder, and on the east by lands of said Jacob Keim; said lot being about forty-three feet front on Pacific avenue, coming to a point between the lines of said Binder and Keim, at a point about 700 feet south of Pacific avenue; the conveyance to include the entire lot of said O'Reilly between said boundaries. Price to be one thousand dollars ($1,000). Deed to be made as soon as practicable, and balance of money to be paid on delivery of deed. J. J. Gardner, Agt. of P. O'Reilly." This contract was performed by the conveyance of the land. For the last few years of his life, Mr. O'Reilly visited Atlantic City very seldom, and wrote few, if any, letters. This work was done by his son, James A. O'Reilly, a young lawyer, residing and practicing at Reading, Pa. All of Mr. Gardner's correspondence and papers relating to this business during Mr. O'Reilly'slifetime, and for a considerable period since, have been lost, and none of those which would presumably be in the possession of the O'Reilly executors have been produced. The evidence of Mr. Gardner is to the effect that replies to his letters during the latter years of Patrick O'Reilly's life came in the handwriting of James; sometimes signed by the father and sometimes signed by James, but apparently written at the father's dictation, using the expression, "Father says," etc. The lands described in the two contracts above set forth form together one lot, but were shown on the map as five lots, viz. Nos. 4, 5, 6, 7, and 31. No. 4 was included in the first contract, and Nos. 5, 6, 7, and 31 in the second. They may, for present purposes, be described as being of a width or front of 200 feet on Pacific avenue, which runs parallel to the shore line, and extending about 2,000 feet parallel with New York avenue, which runs at right angles with the shore line, to the exterior line established by the riparian commissioners. The magnetic course of Pacific avenue approaches more nearly to an east and west than to a north and south course, and so is generally spoken of as running east and west.
The complainant, at and before the date of the first contract, was and still is, the owner of a strip 50 feet in width, running from Pacific avenue along New York avenue to the ocean, adjoining the land here in dispute on the west, and was desirous of purchasing a strip of 50 feet from off it. In fact, the O'Reilly land was laid off in 50-foot strips on Mr. O'Reilly's maps. The complainant called on Mr. Gardner, who was known to him and his neighbors as the agent of Mr. O'Reilly, and learned from him Mr. O'Reilly's price, and agreed with Gardner to take it at that price, viz. $2,500; paid $25 as down money, and took the receipt as above set forth. That sale, as before stated, was reported to Mr. O'Reilly by Mr. Gardner, but Mr. Gardner did not follow his usual practice of at once preparing a deed, and sending it to be executed by Mr. O'Reilly, for the following reason: For many years in the early history of Atlantic City seashore squatters were in the habit of placing bathhouses and booths along the shore just above high-water mark, without regard to the ownership of the soil, and the owners of the legal title had commenced to demand rent therefor only a short time before the period in question. Daniel Lindley, a defendant herein, was in actual possession of the shore front of the 50-foot strip (lot No. 4) described in the first contract. Mr. Gardner claimed to have a contract with Lindley to pay rent to Mr. O'Reilly, which contract Lindley repudiated. Gardner distrained Lindley's bathhouses to pay the rent, and Lindley replevied, and this raised the question whether O'Reilly was Lindley's landlord. The suit was brought to a trial, and resulted favorably to Mr. O'Reilly. Lindley, however, had moved off, or was about moving off, at about the time the first contract was prepared; but before the deed could be prepared and executed another party—one Westmoved on and took possession under some sort of claim of right or title under one Rotheram, so that Mr. Gardner could not deliver possession with the paper title; hence he delayed the preparation of the deed. The complainant was always ready to complete the contract No deed was ever prepared, nor was any request made of complainant to pay the price and take the title. Matters remained in this condition until the death of Patrick O'Reilly, which occurred January 16, 1881. He left him surviving his widow, Catharine, C, his four sons, Anthony J., John F., Francis P., and James A., and his daughter, Mary, —five children. By his will he devised the use of all his estate to his wife for her life, with remainder to his five children equally, the share of his daughter, Mary, being given in trust to his son James. He appointed his wife, Catharine, and his sons Francis and James, executors, with full power to sell land. This will was duly proven In Berks county, Pa., in January, 1881, and also in the orphans' court of Atlantic, by proceedings under the twenty-third, twenty-fourth, and twenty-fifth sections of the orphans' court act, on July 5, 1881, and letters testamentary were issued thereon to Catharine alone, none having issued to the other executors in New Jersey. In the meantime the agency of Mr. Gardner was continued by Mrs. O'Reilly and the other executors precisely as it had been before the testator's death, and he continued to act with the same powers, as he supposed, up to about the time of the commencement of this suit. Legal proceedings were contemplated by the O'Reillys to establish title to the 50-foot strip (lot No. 4) covered by the first contract, which was in the possession of and claimed by West as tenant under the heirs of Rotheram. He was also in possession of the 50 foot strip adjoining it on the east. Lindley was in possession of the 50-foot strip next to the east of the Rotheram strip. The complainant being desirous of purchasing a portion of the balance of the parallelogram above described, owned by the O'Reilly estate, again, shortly after Mr. O'Reilly's death, applied to Mr. Gardner for that purpose. The strip remaining was 150 feet wide, composed on the map of three strips, each 50 feet wide, and about 2,000 feet long, numbered on the O'Reilly map as Nos. 5, 6, 7, but out of its original front on Pacific avenue 100 feet had been sold with a depth of 150 feet, leaving a frontage on Pacific avenue of 50 feet, and on the ocean of 150 feet This frontage on Pacific avenue of 50 feet with a depth of 100 feet was put down on the map as a separate lot, No. 31, and this No. 31 the complainant did not care to purchase. He found Mr. Gardner's price for the three lots, 50 feet each, Nos. 5, 6, and7, not Including the lot No. 81, fronting on Pacific avenue, to be $7,500, and for that lot, No. 31, $4,000, or $11,500 for all. Complainant agreed to take the three lots without the one fronting on the street at the price named, $7,500. Mr. Gardner reported this offer to James A. O'Reilly, with whom he corresponded, who declined to sell a portion only. The course of the negotiation will better appear by reading the correspondence, which began with a letter from Newton Keim, son of the complainant, to Mr. Gardner, as follows:
"March 8th, '81. Dear Sir: Father understood from you that Voorhees advised an ejectment, and was to proceed immediately. Has writ been issued, and is it likely to be tried this spring? [This evidently refers to the adverse possession of the lot (No. 4) covered by the first contract] This proceeding will, I assume, or it may be made to, establish O'Reilly title to the whole tract. Will you make Lindley a party, and title be settled as against his claim also? I suppose from the nature of ejectment that the whole will be settled in one suit, but will be pleased to hear from you in regard to it What is the lowest price at which the remainder 150 feet between us and Berry, and including 50 ft.xl50 ft. on Pacific, could be purchased? Williamson's family and Mrs. Hardwick are, I suppose, tenants of O'Reilly without other claim. Your attention will oblige, yours, truly, Newton Keim.
"Hon. J. J. Gardner."
To this Mr. Gardner replied as follows:
"Senate Chamber, Trenton, N. J., Mar. 10, *81. Newton Keim, Esq.—Dear Sir: Yrs. of 8th inst. rec'd. Mr. Voorhees, atty. for the O'Reilly estate in N. J., determined upon ejectment against all the parties who pretend to claim rights in any lands belonging to the estate. The case will not, I think, be tried this spring. The will had not been probated 10 days ago, and beside there is not time for Mr. V. to get the case on next term. If there is time, he will use it effectively. Williamson's famly and Mrs. Hardwick are tenants under lease given Mrs. Hardwick. I cannot now fix the price the heirs will want for the land you inquire the price of. Mr. O'R. fixed the price, for them, at $9,500 00/100 Yrs., truly, J. J. Gardner."
This was followed by a letter from Keim to Gardner as follows:
"March 29th, 1881. Dear Sir: Will you please ascertain and inform me what price the O'Reilly heirs ask for the 150 ft. between father and Berry's line (1) including 50x150 lot on Pacific, and (2) excluding same; and oblige, truly yours, Newton Keim."
The writer here evidently treats his father as owner of lot No. 4 under the first contract And a reply from Gardner to Keim as follows:
"March 30th, 1881. Dear Sir: Yours of 29th inst. rec'd. The following extract from a letter from James O'Reilly, executor, today rec'd, will probably answer the questions you ask: 'Reading, Pa., March 29, 1881. Dear Sir: In the matter of the strip of land back of lots Nos. 4, 5, 6, & 7, No. 4 was sold to Mr. Keim for $2,500. The price for the remainder is $7,500. This does not include lot No. 31, the price for which in $4,000. The price for strip and lot is $11,500 00/100. Truly yours, James A. O'Reilly.' This extract refers to the land you inquire about & no other. Very truly yrs., Jno. J. Gardner."
After that, interviews took place between one or both of the Messrs. Keim and Gardner, resulting in a letter from Gardner to Keim of May 24, 1881, as follows:
"May 24, 1881. Dr. Sir: After long delay, the executors & heirs of P. O'Reilly, dec'd, answered me in regard to the acceptance of your offer for lands of the estate, as follows: 'In regard to the property Mr. Keim desires to purchase, my reply to your query is that we desire to dispose of all the property between Tennessee and New York avenues — that is to say, 5, 6, 7, & 31,—and do not care to sell 5, 6, & 7 without 31.' No. 31 is the lot fronting Pacific Ave., next to Berry, 50x150 ft. 5, 6, & 7 are the three 50-feet strips, comprising the land described in your offer. Of course, this communication has no reference to the 50 ft. strip next to lands of Jacob Keim. Very respt, J. J. Gardner."
And again, another one on July 18, 1881
"Newton Keim, Esqr.—Dear Sir: I wish you would make an offer for the lands of O'Reilly estate desired by you, including therein the lot fronting Pacific avenue, known as 'No. 31.' While the executors desire to sell this lot with the other land, I may modify their ideas of its value. Yr. ob't s'v't, J. J. Gardner."
To which Mr. Keim replied:
"July 20th, 1881. Dear Sir: Yours of 18th received. We do not desire to purchase the lot fronting on Pacific avenue, even at a favorable price. It increases the investment somewhat, and for the plan of improvement which we had contemplated it would not be available. That lot would be the same to us as to a purchaser buying it only. Should the other be sold to us, the owners will be free to sell the Pacific Ave. lot at any time, and need not, as now, perhaps, feel bound to retain it as an outlet. Unless, therefore, the price should be set so as to be specially tempting, we would not wish to make the amount of the investment so large as the total of all the lots would reach. Yours, truly, Newton Keim.
"J. J. Gardner, Esq."
It was proven that these copies of letters from O'Reilly to Gardner introduced into his letters to Keim were duly taken from the originals received by Gardner, and which had been lost. The result was that in the end Mr. Keim offered Mr. Gardner $10,000 for lots Nos. 5, 6, 7, and 31. No. 4, as before remarked, was the subject of the first contract. Subsequently, and some time prior to October 29, 1881, which is the date of the secondcontract, Mr James O'Reilly negotiated a sale of these lots—Nos. 5, G, 7, and 31—to a Mr. Herring, at $10,000, being $1,500 less than he had asked Mr. Keim, and being just the amount Keim had offered, and he (O'Reilly) sent Mr. Herring to Gardner to complete the contract, with a letter from O'Reilly to Mr. Gardner, which has been lost, but which was seen by Mr. Keim. Mr. Gardner refused to complete this contract with Herring, on the ground that Mr. Keim had first offered the price named, and he notified Mr. Keim, and thereupon the second contract—that of October 29, 1881—was prepared and signed. Mr. James O'Reilly had immediate notice of this sale, and acquiesced in it. His letter to Gardner of March 29, 1881, copied in Mr. Gardner's letter to Keim of March 30, 1881, shows that he knew of the previous sale of lot No. 4 for $2,500. Subsequent correspondence, hereafter to be referred to, shows that he (James) from time to time, in his letters addressed to Mr. Keim during the whole period which elapsed between 1882 and the commencement of this suit,—April, 1892,—recognized the existence of this contract of sale to Mr. Keim. Indeed, so far as he (James A. O'Reilly) is concerned, it was frankly admitted by the counsel of the defendants that, so far as authority went, the contract was authorized by James. But it is alleged that neither Mrs. O'Reilly, who died pending the suit, and without being sworn as a witness, nor Francis P. O'Reilly, the other executor, had any notice whatever of, or ever gave any authority for, it. Francis P. O'Reilly was sworn, and in the most positive manner denied that he ever gave any authority to Mr. Gardner to make any binding contracts, or ever knew that he made any such; and James swears that he did not know that any contract in writing had been given. The serious question, then, is whether or not the circumstances are such as to show affirmatively that Francis P. O'Reilly and his mother did authorize the second sale, either expressly or impliedly.
Now, I think that it is impossible to read the letters written by James to Gardner in 1881 without finding in them what amounts to an assertion that he was speaking for himself and his brother and mother advisedly, and after consultation with them. It will be observed that in Mr. Keim's letter of March 29, 1881, he asks Gardner to ascertain "what price the O'Reilly heirs ask for the 150 feet," etc. Now, the letter which Mr. Gardner wrote to the O'Reilly heirs in pursuance of that request is presumably in their possession, and is not produced. The answer was written by James, and the fair inference is that in speaking he was speaking advisedly for his mother and brother as well as for himself. And in this connection comes in the evidence of Francis P. O'Reilly that his father in his lifetime furnished him with a copy of his map of lots at Atlantic City, with his prices named thereon, and that those prices were his guide in determining whether or not he would sell any particular lot at a particular price. And it further appears that the price named in this second contract is greater than that fixed by Mr. O'Reilly in his lifetime. Then, if we look at the letter of Mr. Gardner to Mr. Keim of May 24, 1881, we find there that Mr. Gardner has been seeking from the executors and heirs of O'Reilly an answer to Mr. Keim's offer, which he had, as he swears, made verbally to Mr. Gardner, and there the language used by James in writing to Gardner is this: "In regard to the property Mr. Keim desires to purchase, my reply to your query is that we desire to dispose of all the property," etc.,—speaking in the plural. No doubt that letter was written by James O'Reilly, but did he use the plural without having first consulted with his brother and mother? Then, again, it is not easy to believe that James, after having fixed a price for this land at $11,500, reduced it to $10,000, and offered it to Herring at that price, without consultation with his brother Francis and his mother. Francis swears that he did join his mother and brother in divers deeds of lands in Atlantic City, made in pursuance of some sort of preliminary contracts, and that in so doing he never went to see the property, but relied in part upon the prices fixed by his father, which he had before him, and in part upon James' judgment, and upon observing that the prices were generally advances upon those fixed by his father. Now, under these circumstances, I think the strong inference from all the evidence is that this offer of the land included in the second contract to Herring at $10,000 was made by James after conference with his brother and mother, and that the brother's denial of knowledge at this late day, under the peculiar circumstances which have arisen, and under the temptation of an increase in the value of the property at least tenfold, is insufficient to overcome it. Surely, Mr. Keim, with his knowledge of Mr. Gardner's apparent authority to make each of these contracts, and, as to the last, with Mr. Gardner's letters before him, was fully justified in believing that he had full authority. So with Mr. Gardner himself. He acted in perfectly good faith throughout. He fully believed that he was duly authorized, first by Patrick O'Reilly to make the first contract, and afterwards by his executors to make the second. And I think that the mere fact that a man possessed of the keen intelligence and hard common sense which distinguishes that gentleman—who, though not an educated lawyer, is yet experienced in such matters—believed that he had authority to make a binding contract is entitled to some weight. He may not be, as, indeed, he is not, able to state precisely how that authority was given; but he swears he had authority to sell at fixed prices; that heacted upon It in numerous Instances, both in the lifetime of Patrick O'Reilly and afterwards; that his authority was always recognized, and never, until in this instance, disputed, and then not until April, 1892, shortly before the bill was filed. What passed between Mr. Gardner and Mr. James O'Reilly on that occasion—April, 1892—is somewhat significant as to what Mr. O'Reilly's understanding was at the date of these contracts. Mr. Gardner stated that the first disapproval he ever heard of his conduct in making this sale was in April, 1892, and that was expressed by Mr. James O'Reilly, saying that he was not aware that Mr. Gardner had ever signed any contract; to which Mr. Gardner replied that he had sold the lots many years ago, and that he (O'Reilly) must have been aware of the fact. To this Mr. O'Reilly replied "that, if I had sold the lots, the sale ought to have been—I don't know what the word was—consummated, terminated, ended, or something of that sort." Now, here was no dispute on the part of Mr. James O'Reilly of the authority of Mr. Gardner to make these sales, and to execute binding contracts for them. James A. O'Reilly himself swears, in effect, that Mr. Gardner had authority from him, James, representing the other executors, or, as he expresses it, "assuming to act for the other executors," to make sales at prices fixed by him,—precisely as he did from his father in his lifetime,—but the defendants distinguish between authority derived from one of the three donees of the power to sell and authority derived from all. I will consider this point further on.
One other piece of evidence deserves notice. At one of the trials at May's Landing of the suits relating to this property—O'Reilly v. Lindley—Mr. Gardner was called as a witness, and on his examination, in the presence of the counsel of the O'Reillys, testified, among other things, that he was their agent to sell this property. Now, what is included in the notion of authority to an agent to make sales of real estate at fixed prices and terms as to credit? What is a sale? It is a contract, and, of course, a binding contract. Binding upon whom? Why, of course binding upon both parties. Surely, no authority is necessary for the proposition that a general authority to an agent to make a valid contract of sale includes authority to bind the vendor. But it is contended by the defendants that the established rule in New Jersey is otherwise as to real estate, and authorities are cited which are supposed to so hold. The earliest case is Shepherd v. Hedden, 29 N. J. Law, 334. That was, in effect, a suit by a broker against his principal to recover specified commissions agreed upon in a special agreement between them to the effect that, if Shepherd should find a purchaser for Hedden's farm at $125 an acre or more, he should have all he got over that price. Shepherd did procure such a purchaser at $130 an acre, and a written contract between the purchaser and Hedden was prepared and executed by both parties, and the land was conveyed in accordance with it. The question now under discussion was not involved, nor was it alluded to by Chief Justice Whelpley or Mr. Justice Haines in either of their opinions. They did, indeed, speak of Mr. Shepherd as "making the sale," but by this they evidently meant no more than that he was the efficient cause of bringing the parties together. He found a purchaser. The contract between Shepherd and Hedden was not in writing, and related to the stogie transaction. Shepherd was not the general agent of Hedden. The latter lived upon the property sold, and the purchaser was his next-door neighbor. Mr. Justice Brown, in his opinion (bottom page 344), uses this language "The other question certified is whether in fact Shepherd did make the sale so as to be entitled to the compensation. The contract [between Hedden and Shepherd] did not contemplate that he should make the title, or even an agreement for the title, in legal form. He had no power to do so. He could only be the efficient cause of the agreement to sell. That is all the contract required of him." This language was afterwards quoted by Chancellor Zabriskie as a dictum in favor of the position that authority to a broker to sell land did not include authority to make a binding contract, but the learned judge (Brown) does not appear to have had the general question as stated in his mind, but simply what was the particular contract there in hand; and clearly what was meant by the parties, witnesses and counsel, in that case by "making the sale" was no more than being the efficient cause of and bringing about the sale. Morris v. Ruddy, 20 N. J. Eq. 236, decided by Chancellor Zabriskie, was upon a bill by vendee against vendor for specific performance of a contract signed by a real-estate broker. The proof was that the defendant "told the brokers, whom he knew to be real-estate brokers, that, if they could sell his property, they should do so, and said he wanted $3,000 for it." The learned chancellor construed that language as, under the circumstances, meaning no more than that the broker was employed to find a purchaser and effectuate a sale, and did not include authority to make a binding contract. He says (page 237): "Brokers are persons employed to effect sales. Their general business is only to bring together parties. But with regard to merchandise it is held that they have the power to bind the principal by their signature to written memorandums of sales, known as 'bought and sold notes,' in sales within the statute of frauds. * * * There is not the same reason or the same necessity for holding that the broker is authorized to sign a contract of sale to case of lands as for merchandise." And on page 238, referring to Shepherd v.Hedden, he says: "Justice Brown expressly says that the broker has no authority to sign a contract of sale. I am inclined to adopt this as the correct view, and to hold that this contract is not signed by a person thereunto lawfully authorized, as required by the statute of frauds. Giving authority to sell does not, by force of the terms, or by their general acceptation, give authority to sign the vendor's name to a contract." This language must be construed in connection with the context and subject-matter, which was the case of a deputation to an ordinary broker in real estate to sell land at a price, which the chancellor construes to be no more than an employment to find a purchaser, and not an authorization to do anything. Of the cases cited by the learned chancellor in support of this doctrine, Glentworth v. Luther, 21 Barb. 145, was an action for commissions in which the only question was as to when the commissions were earned. Roach v. Coe, 1 E. D. Smith, 175, was a suit for specific performance of a contract signed by a broker whose authority was contained in a letter from the defendant to the broker, which, so far from authorizing the broker to conclude a sale in the writer's name, says: "We will enter into an agreement with him [the purchaser] to let him take the lots, provided," etc., setting out certain precise conditions, none of which were observed by the broker in the contract he made. See pages 187, 188. Coleman v. Garrigues, 18 Barb. 60, was a suit, as here, for specific performance of a contract, signed by a real-estate broker in the name of his principal, the defendant, and the question was as to the extent of his authority. The allegation was that the broker was employed to sell, and the testimony of real-estate brokers in New York City was admitted to the effect that in that city the mere employment to sell did not indicate authority to sign the employer's name to contracts of sale, but was confined to finding a purchaser, and reporting the same to the employer. The case was decided against the complainant, on the ground that the contract signed varied from that authorized; but the judge also said that: "It is well known that the general agency of brokers in real estate is limited to finding a buyer or borrower who will assent to the terms of the seller or lender, and then bringing the parties together. * * * In dealing in real estate, the authority to sign the contract is never understood to be granted from a mere authority to make a bargain." Here, again, the language of the judge must be construed in connection with the facts of that case and the subject-matter. The doctrine of Coleman v. Garrigues and Glentworth v. Luther was expressly overruled, after full argument and consideration by the four judges composing the general term of the New York supreme court, Second district, —Lott, J. F. Barnard, Gilbert, and Tappen,— in Pringle v. Spaulding (1868) 53 Barb. 17. At the trial the Judge, in disregard of those cases, had charged the jury that parol authority given by the owner to an ordinary real-estate broker to sell included authority to execute a written contract, and bind his principal. In bank the court say: "The broad proposition on which the case of Coleman v. Garrigues was decided cannot be sustained consistently with these cases [previously cited], or with the principle, which is frequently asserted as being elementary in the law on agency, viz. that an authority to do an act includes authority to employ whatever means are necessary to accomplish the due execution of the power." But to return to the New Jersey cases. In Young v. Hughes, 32 N. J. Eq. 372, the question was one of fraud in the contract, which was signed by the parties, and not by the broker; but the broker was charged with fraud in betraying his client. Mr. Justice Magie, at page 383, says: "The relation which a real-estate agent or broker bears to his principal is somewhat peculiar, and his power as agent to bind his principal is limited [citing the authorities]. But there can be no question that he assumes some duties to his employer,—such as to find a purchaser for the property, to bring the purchaser into communication with his employer, and to use his efforts to forward the negotiation between them in the interest of his employer. To this extent, at least, he becomes an agent." The object here, manifestly, was to point out the distinction between a mere broker and an agent, and to show how far the former may be the latter.
The latest case, and one more nearly in point, is Milne v. Kleb, 44 N. J. Eq. 378, 14 Atl. 646, decided by Vice Chancellor Van Fleet. That, as this, was a suit for specific performance of a contract to sell, signed by an agent,—an attorney of the supreme court, —who was employed to sell at a time when the parties were residing in the same city, and the defendant at the same time put the same property in the hands of several other real-estate brokers to sell, or for sale. He gave the broker who made the sale a writing in these words: "I agree to pay C. Bried two and a half per cent. on the price of my house on Broad street, if he sell or is instrumental in selling the same for me at a price I accept." This was some two months after the property was put in the broker's hands, and a price and terms—as the broker swears-fixed upon it Now, this circumstance, and the language above used, show clearly enough, as I think, that the execution of an agreement by the agent in the principal's name was not in the minds of the parties. They used the word "sell," in the restricted and peculiar sense in which it is used by real-estate brokers, as meaning to find a satisfactory purchaser at a satisfactory price and upon satisfactory terms. The learned vice chancellor so construes it when he says (page 381, 44 N. J. Eq., and page 646, 14 Atl.):
"He was a special agent, constituted to do a specific act—to negotiate a sale, or to find a purchaser who was willing to purchase, on the terms specified." With great respect I think the learned judge might well have substituted the word "broker" for the word "agent" The contract was executed in December, 1887, two years after the employment, and seventeen months after the defendant had left the country, and while he was in Europe. The learned vice chancellor, on page 382, 44 N. J. Eq., and page 646, 14 Atl., says: "In this case no claim is made that express authority had been given to the agent to make or sign a written contract for his principal. There is nothing in the circumstances of the case from which such authority could be fairly or reasonably implied; on the contrary, it seems quite clear that the implication should be the other way. The property was in the hands of other real-estate agents. The principal and his agent resided near each other, and met almost daily; so that, if a purchaser was found, he could easily, and without delay, be brought to contact with the principal. So far as appears, at the time the agent was appointed, the principal had no intention of going to Europe, and the language of the contract of January 12, 1886, respecting commissions, would seem to indicate quite clearly that it was understood that no bargain should be concluded by the agent until the principal had had an opportunity to say whether the price offered was satisfactory or not, its provision in that regard being that the principal would pay commissions on the price obtained, provided the agent sold, or was instrumental in selling, for a price which the principal accepted." He then proceeds to state the rule as laid down by Chancellor Zabriskie in Morris v. Ruddy, supra, and, in addition, cites Hamer v. Sharp, L. R. 19 Eq. 108. In that case the broker's authority was in writing, as follows: "I request you to procure a purchaser for the following freehold property, and to insert particulars of the same in your Monthly Estate Circular till further notice, viz.: My beer house and shop, No. 4 and No. 6 Manchester Road. Tenant, No. 4, William Galloway, gilder; and No. 6, Albert Vaults, Henry Holmes, beer retailer, and work rooms above. Present net rent, £150. Price, £2,800,—when I will pay you a commission and expenses of fifty pounds. About six years' lease unexpired. [Signed] J. Sharp." And I venture to suggest that the written authority itself decides the case. The employment was limited to finding a purchaser. However, whatever authority was so given was withdrawn six months later, and the property withdrawn from the market The vendor was the owner of the fee, subject to the lease mentioned in the letter of instructions. This circumstance gave the property a changing value as time ran on. Notwithstanding the withdrawal of the authority, the broker, nine months later, signed a written contract for its sale to the plaintiff, who brought suit. Vice Chancellor Hall, in dismissing the bill, said that authority to find a purchaser was not authority to enter into a written contract, stating as one reason that, according to the English practice in such cases, the terms of the contract as to producing and verifying the muniments of the vendor's title were of the utmost importance, and that the contract actually signed did not properly protect the vendor in that regard. At page 112, he says: "In considering whether the instructions of October, 1872, were a sufficient authority to the agent for that purpose, I cannot help expressing an opinion that such an authority to an agent on the part of a vendor would be highly imprudent, as the purchaser would then be entitled to require, on completion, attested copies of all documents of title, and the expense of them would swallow up, to a great extent, the purchase money. This estate agent must have known that, if this property had been offered for sale by public auction, there would have been conditions to guard the vendor against being subject to certain expenses, and to prevent the contract becoming abortive by reason of a purchaser requiring a strictly marketable title. Could he suppose that he was invested with authority to sign a contract without considering what it should contain as regards title? As an intelligent and well-informed person, he could not suppose that he was properly discharging his duty to his principal when he signed the contract which he signed. Such a contract was not one within the scope of his authority to sign. If he had a right to enter into any contract at all, it was one of a different description; and on that ground alone—this being a bill for specific performance, and the court having a discretion—I hold that the alleged contract, if it be a contract, is not one which the court will decree to be carried into effect. Taking that view of the case, it is not necessary for me to decide the question of authority, but I nevertheless state my opinion to be that, when instructions are given to an agent to find a purchaser of landed property, he, not being instructed as to the conditions to be Inserted in the contract as to title, is not authorized to sign a contract on the part of the vendor." This matter of being protected against the expense of an indefinite production of title papers arises out of the peculiarity of the English land titles, which are not found in any public record, and the result is that, when landed property is offered for sale in England, it is almost invariably upon condition that the purchaser shall not go further back than a certain point in what are called his "requisitions" on the other side for muniments of title. Hence, in England, the terms of the preliminary contract are of the utmost importance. But in sales at auction in England, where the terms of the contract in this and all otherrespects are always fully set out in the conditions of sale, it is well settled that the auctioneer or his clerk is authorized to sign for the purchasers, and such signature binds the purchaser under the statute of frauds. The only remaining case referred to in New Jersey is Chamberlain v. Manning, 41 N. J. Eq. 651, 7 Atl. 634. That was a case of a mere authority to the broker to find a purchaser, and the attempt on the part of the purchaser was to take possession under a parol bargain with the broker, and to make an equity in favor of himself by erecting a building. There the point was made by the counsel of the defendant—not noticed by the court—that, admitting that the parol contract was made, and that the agent had authority to make it, still he had no authority to put the purchaser in possession in advance of a conveyance; and that, in the absence of the consent of the owner or his agent, thereto duly authorized, to the purchaser taking possession and making improvements, he could gain no equity by so doing.
I have gone into these authorities at this great length in order to ascertain and define the true scope and limit of the rule whose latest expression in this state is found in Milne v. Kleb. It seems to me to amount to no more than this: that the mere employment of an ordinary real-estate broker to effect a sale of a parcel of land, even though the price and terms be prescribed, does not amount to giving present authority to such broker to conclude a binding contract for the same. Moreover, such authority is not usually to be inferred from the use by the principal and broker in that connection of the terms "for sale" or "to sell" and the like. Those words, in that connection, usually mean no more than to negotiate a sale by finding a purchaser upon satisfactory terms. But, in my judgment, the present case is not within that rule. Mr. Gardner was something more than a mere broker. He was the trusted agent, who had the possession, care, and control of the property of an absent owner. No other broker or agent had any care or control over it, or was even employed to make a sale of it. In short, there were here present those circumstances indicating authority which were absent in Milne v. Kleb, and those circumstances which in that case indicated a want of authority are not found here. There is nothing to indicate that the elder O'Reilly ever made any question as to the character of the purchaser, or of the improvements he intended to erect, or the use he intended to make of the property. On the contrary, the evidence tends to show that all he required was that his fixed price be paid and secured. Hence there was no occasion for him to know who the purchaser was. Then we have the significant fact, before alluded to, that in one instance where he had received an offer greater than the price given by him to Mr. Gardner, and that gentleman had previously made a sale at the previously fixed price, such sale was recognized as binding upon the principal, and was carried out by a conveyance. Then I think the course of dealing for a period of over 10 years prior to his death is entitled to great weight. It is, indeed, as before pointed out, one of the recognized modes of proving an agent's authority; and in this case the effect of such a course of dealing is Intensified by the high character and intelligence of the agent. I conclude, therefore, that the authority from the elder O'Reilly to Senator Gardner in this case was "to sell" in the larger sense of that word, and included the authority to make a binding contract, and that necessarily included the authority to sign a contract in his behalf. Says Chief Justice Shaw, in Valentine v. Piper, 22 Pick. 85, at page 92: "Where the term 'sale' is used in its ordinary sense, and the general tenor and effect of the instrument is to confer on the attorney a power to dispose of real estate, the authority to execute the propel instruments required by law to carry such sale into effect is necessarily incident. It is in pursuance of a general maxim that an authority to accomplish a definite end carries with it an authority, so far as the constituent can confer it, to execute the usual, legal, and appropriate measures proper to accomplish the object proposed., A power of attorney might be so drawn as to authorize the attorney to make sale of an estate where it might be apparent that it was the intention of the constituent to authorize the attorney to negotiate for a sale, leaving it to the constituent afterwards to ratify it, and to execute deeds. Should it appear, either from the restricted words used or from the tenor of the whole instrument, that such was the intent, it ought to be construed as conferring such a restricted power only. In the present case we think it was the intent of the constituent to confer on the attorney an authority to transfer the estate." The writing there in question authorized the agent to sell the land, either by private sale or by auction, and receive the proceeds; but did not, in express terms, authorize the execution of a deed.
Now, as before shown, after the death of the testator, no change was made in the relations of Senator Gardner to the lands in question. He continued, as before, to act under the immediate direction of James, who appeared to act by the authority of the other executors. Both Francis and James resided at Reading, either with or near to their mother. Francis had a map of these lands, with the prices fixed upon each lot by his father. He was content to sell at such prices, not less than those fixed by his father, as James should approve. And I think it fairly inferable from all the circumstances and the proven course of action from the death of the testator onward that Mrs. O'Reilly was of the same mind. There is every presumption that she was cognizant of, and familiar, in a general way, with, the management ofthe estate by her two sons, and was satisfied with it. I think it a fair presumption that she had a general knowledge of the character and situation of the lands situate at Atlantic City, and of the mode of fixing prices upon sales of it. The fact that she joined in the execution of divers conveyances indicates at least that. She is also chargeable with knowledge of the fact that Senator Gardner had been the trusted agent of her husband in his lifetime to take care of and sell these lands. Then there is the evidence, to which I have before alluded, tending to show that the offer of lots Nos. 5, 6, 7, and 31, composing the three 50-foot strips, at $10,000, to Herring, was the result of a conference between the three trustees. The proofs show that in the letter from James O'Reilly to Senator Gardner, announcing the sale to Herring, James used the words, "we have decided to sell," etc. Now, why did he send Herring to Gardner if the latter was not to get a payment from Herring, or in some way bind him to the contract? I think this circumstance quite significant. The executors knew that they were not able at present to give a good title,—to complete a sale by delivery of possession with the deed. They must have known that the sale of the first lot to Keim was not completed. In fact, they do not deny it. At least, James does not. They knew that suits were necessary to recover possession. The immediate closing of the sale with Herring by a conveyance was certainly not contemplated. Then why send him to Gardner? James himself could have drawn any papers necessary to give the affair proper shape; yet he sent him to Gardner. Now, I am unable to imagine any object in so doing, except to have Gardner procure a payment from him on account, and fasten him in the same way that he had so long been in the habit of doing in such cases, and also to avoid the risk of Gardner having in the meantime made a contract to sell the property to somebody else. And if he expected Gardner to accept a payment from Herring, he must have expected him to give him a receipt for it, expressing upon what account it was paid; and that would be a contract. Further, he must have expected that some reasonable provision would be made with regard to the time when, and the circumstances under which, the sale would be closed by a conveyance. But the price being fixed at $10,000, there is no reason to believe that there was any choice in the person of the purchaser.
Now, at this point I am met by the position taken by the defendants that the deputation by the trustees to the agent of the making of this contract was an unwarranted delegation of a power. Let us see. The rule invoked is that a power involving the exercise of personal discretion and judgment cannot be delegated. Farw. Powers, p. 358; 1 Sugd. Powers (3d Am. Ed., from 7th London Ed.) 213; Lewin, Trusts (Flint's Ed.) 257. An examination of the authorities shows that the prohibition is against the delegation of the personal discretion and judgment. But, if the trustee or donee of the power actually exercises the discretion and judgment in a reasonable manner, and arrives at a conclusion, he may delegate to another the mere ministerial duty of carrying out that judgment. Hr.Lewin (page *258) says: "It must be noticed that the appointment of an attorney or proxy is not in all cases the delegation of the trust. When the trustee has resolved in his own mind in what manner to exercise his discretion, he cannot be said to delegate any part of the confidence if he merely execute the deed by attorney or signify his will by proxy." To the same effect is what is said by Lord St Leonards at pages 214 and 215 of 1 Sugd. Powers. In 1 Perry, Trusts, § 409, the learned author, speaking of delegation of discretionary trusts, says: "But it must be observed that the appointment of an attorney, proxy, or agent is not necessarily a delegation of the trust. The trustee must act at times through attorneys or agents, and, if he determines in his own mind how to exercise the discretion, and appoints agents or instruments to carry out his determination, he cannot be said to delegate the trust, even though deeds or other instruments are signed by attorneys in his name. So, if he gives Instructions to his attorneys and agents how to act, it cannot be said to be a delegation of the trust." To the same effect is Hill, Trustees, p. 541, where he says: "However, the employment of an agent for carrying out mere ministerial acts—such as the sale of the property, and purposes of that nature—is not within this rule, for such acts are necessary to the discharge of the trust; and it will be sufficient that the trustee retains the supervision and control over the person so employed." This view is in accordance with reason, and is fully sustained by the decided cases.
A case much relied upon against this restriction of the general rule is Berger v. Duff, 4 Johns. Ch. 368. That was a bill by two trustees, vendors, against the purchaser. One trustee lived in France, and the other in New York, where the land was situate. The foreign trustee gave the New York trustee a power of attorney to sell and convey at such price and upon such terms as he should deem expedient. He contracted to sell to defendant, and tendered a deed executed by himself alone, under the power. It did not appear that the foreign trustee had ever exercised his judgment and discretion as to the sale. Chancellor Kent refused a specific performance, upon the ground that the case was one of an attempt of one trustee to delegate his judgment and discretion to his cotrustee. I can find no well-considered case that goes further. In this connection there is another consideration which is entitled to more or less weight. There is no dispute but that all the executors did agree upon the policyof a sale of the Atlantic City property; that it was for the interests of the estate to sell, and in the parcels designated by the testator in his lifetime. The only room for the exercise of immediate judgment and discretion in the sale of any particular lot was as to the price of that lot. Now, in this matter it might well be held to be a fair exercise of the discretion and judgment vested in the three executors for the two who lived at Reading, and had little personal knowledge of the value of lands in Atlantic City, to adopt the judgment of the third, who was familiar with them, and that of Senator Gardner, the trusted agent of the testator, and to adopt their valuation, especially as they were aided therein by the valuation made by the testator in his lifetime. It is difficult to suggest any better or safer guide which they could have adopted. The employment, by trustees, in England, of a class of men called "surveyors," to value property for purposes of sale, is quite common. But, admitting that the evidence of the original authority from Francis and his mother to Mr. Gardner to make this contract is not established, there still remains the question of adoption of it by subsequent silence, and receipt of a part of the purchase price. Now, Mr. Gardner swears most positively that he accounted for the two sums—$25, received upon the first contract, and $500, received upon the second—either to Mr. O'Reilly in his lifetime, or to his executors after his decease. He, during that period of his transactions with the estate, kept no accounts whatever, but made up statements from time to time, and sent them to the O'Reillys at Reading. None of the accounts or letters or statements received from Mr. Gardner have been produced by the defendants. They say that in a settlement that took place among the heirs about the year 1890 all previous papers, accounts, and statements relating to the estate were destroyed. This is a most extraordinary and well-nigh incredible statement, and I am entirely satisfied that somewhere among the papers which were in the possession of Francis P. and his mother, as well as of James, was at one time a statement showing that these payments had been made upon these lots, and that they were seen and observed by both Francis and his mother, as well as by James. And there cannot be the least doubt but that they received the benefit of them. Nor can there be the least doubt but that James told his mother and brother that this large sale for $10,000 had been made to Mr. Keim. It is, indeed, difficult to believe that he did not. In fact, it is not denied, as I recollect the evidence, that they had notice that such a sale had been made by word of mouth. The point of the denial is that they had no notice that it was made in a binding form by writing properly signed. But I feel constrained to charge them, with notice that money had been paid upon it, and, if so, then they are chargeable in law with knowledge of what that meant, which is this: that if. money was paid to their agent on account of a lot of land, then their agent, in the natural course of business, must have given some sort of a receipt for it. If so, then, in the same natural course of business, the person paying the money would require that the receipt should indicate on what account it was paid; and if it did indicate in proper language on what account it was paid, the result would at once be a binding contract. Surely, Mr. James A. O'Reilly, who was a lawyer by profession, must have known this. The result is that all three of these executors are justly chargeable, upon the evidence, with notice that this land was sold to Mr. Keim at a price which was satisfactory to them; that Mr. Keim had made a down payment upon it, and that he had taken a receipt from their agent, which probably, at least, had taken the form of a contract. Now, under these circumstances, it was their duty at once, if not satisfied to allow that contract to stand as a binding contract, to give notice to Mr. Keim, repudiating it, and return the money to him. This they have never done. The reason for the delay in completing the contracts is quite apparent. The end or front on Pacific avenue of lots Nos. 4 and 5 (lot No. 4 being covered by the first contract) belonged to the heirs of one Rotheram, and after the decision—about the date of the first contract—of the replevin suit against Lindley, who had been in possession of those two lots, he abandoned possession, but possession was at once taken by one West as tenant of the Rotherams. Lindley retained the possession of lot No. 6, which was one of the three intended to be covered by the second contract, he being the owner of the front of that lot on Pacific avenue. The correspondence of March, 1881, above set forth, shows that Mr. Voorhees, for many years the counsel of Mr. O'Reilly, and continued as such by Mrs. O'Reilly, and the executors, was preparing to bring suits to eject these divers occupants. Such suits were brought in January, 1882,—one against West, in possession of lots Nos. 4 and 5, to which Rotheram was made a party defendant; and the other against Lindley, in possession of lot No. 6. Why they were not brought sooner does not appear, and to me is unaccountable. The suit against West and Rotheram for lots Nos. 4 and 5 was not brought to trial until April, 1892, a delay of over 10 years, and resulted in a verdict and judgment for the plaintiff. The suit against Lindley for No. 6 was brought to trial at September term, 1882, and resulted in a verdict for the plaintiff. At this trial the defense seemed to have relied on adverse possession only. The judgment on this verdict was reversed by the court of errors and appeals at July term, 1884. Lindley v. O'Reilly, 46 N. J. Law, 352. A second trial was had December, 1886, more than two years (why so much delaydoes not appear) after the reversal, at which the defense of adverse possession does not appear to have been set up, and again a verdict was obtained by the plaintiff. The judgment on this verdict was reversed by the court of errors and appeals at July term, 1883. 50 N. J. Law, 636, 15 Atl. 379. This cause was again noticed for trial, April term, 1892. In the meantime Mr. Keim was at all times willing and anxious to complete his contracts as soon as the title was settled, and was constantly urging on the suits. He had himself personally several interviews with Mr. Voorhees as counsel for the O'Reillys, one as early as 1882, in which he informed Mr. Voorhees that he had purchased the, property in dispute, to which Mr. Voorhees replied, "Yes, I was told so." He also frequently saw Mr. Gardner, and also Mr. James O'Reilly, and urged him to bring on the trial of the suits, so that the contracts could be concluded, on which occasions James recognized his rights, and expressed regret at the delay, and promised that those suits should be brought to a speedy trial. Gen. Wright, a civil engineer of Atlantic City, and a witness for the O'Reillys in the Lindley suit, also spoke to Mr. Voorhees in Mr. Keim's behalf to hurry on the trials. Then we have the following correspondence. On November 27, 1883, Mr. Newton Keim, son of the complainant, wrote to Mr. Voorhees as follows:
"November 27th, 1883. Dear Sir: My father, Mr. Jacob Keim, of Atlantic City, purchased, a year or two since, lands belonging to estate of Patrick O'Reilly, deceased, the transfer of which has not been completed owing to disputed title as to part, which dispute by several parties was, I understand, to be conclusively determined as to all by the case v. Lindley, in which you obtained a verdict at May's Landing. I take the liberty of inquiring, and trust you will not consider it intrusive, whether an appeal has been perfected in that case, and, if so, when it may probably be heard in the appellate court My father is desirous, of course, of acquiring title and possession as soon as circumstances will permit. Your kind attention will oblige, very res'y yours, Newton Keim."
To which Mr. Voorhees, under date of December 6, 1883, replied as follows:
"Camden, N. J., 12-6-1883. Dear Sir: Yours of 27 ult was duly rec'd. The case of Lindley v. O'Reilly was not reached at the term of the court of errors just closed. I suppose it will be settled at the next March term of the court. Respfy., P. L. Voorhees."
Now, this letter, in connection with the previous interview, sworn to by the complainant, seems sufficiently conclusive that Mr. Voorhees understood Mr. Keim to be the equitable owner of the land in controversy. On any other theory, his letter of inquiry would have been an impertinence, and entitled to be so treated by Mr. Voorhees. Next in order of dates is a letter from Newton Keim to Senator Gardner, dated January 21, 1885: "January 21st, 1885. Dear Sir: I have a memorandum of information which you gave me in regard to the Kenyon lease (O'Reilly ground), to the effect that the year begins June 1st. Three months' notice would require that service be made prior to March 1st,— now but five weeks off. My anxiety that our purchase and possession may be settled and established as speedily as possible leads me to write this to remind you of this matter of notice. Please have Kenyon, Clinton, Catlow, and Williamson all duly notified. I am afraid there may be trouble with Williamson, perhaps others, and would give all formal notice. I would be much obliged if you would write me in regard to the West Jersey inquiry, which I asked you to make. I have not had opportunity to see you, and am not likely to soon. Yours, truly, Newton Keim."
To which the senator replied the next day as follows:
"Jan'y 22nd, 1885. Dear Sir: Yours of yesterday rec'd. The O'Reilly tenants will be notified in time. I had delayed writing of the West Jersey matter in hope of meeting Gen'l Sewell, and getting more specific information. The answer to my inquiry was that the company was 'willing to sell without any restriction all the land they could spare, and were ready to consider an offer at any time.' I suppose they can spare all the Atlantic avenue front, but cannot specifically describe the quantity for sale. Please communicate anything you have to say or suggest in the matter. In the meantime I will try & see more about it Very respt, yr. ob't svt, J. J. Gardner."
Next we have a letter from Newton Keim to James O'Reilly, dated March 16, 1885:
"March 16th, 1885. Dear Sir: My father, Mr. Jacob Keim, has been waiting for several years for the completion of title to lands at Atlantic City, purchased by him, and is very desirous that there should be no avoidable delay in the matter. Several terms of court have passed without the pending Lindley suit having been brought up to second trial, but we were informed that trial would certainly be had at April term next. On inquiry of Mr. Gardner, we learn that he has no advices from Mr. Voorhees as to preparation of the case, and, as April term is now very near, it seems as though there would be still further postponement. We take leave to ask that you will strongly urge counsel to speed the matter, and not on any account to pass this term of court. There is certainly no reasonable ground why it should not now be brought up. It seems to us desirable for the estate as well as ourselves that there should be a speedy end to the matter, and we trust that you will, without delay, give your attention, and secure the earliest consummation possible. Be kind enough to let me hear from you. Very respectfully yours, Newton Keim."To which Mr. O'Reilly replied as follows:
"Mar. 23rd, 1885. Dear Sir: Yours of the 16th rec'd. I have just returned from Atlantic City and Camden. The case has been 'noticed for trial' to April term, and will certainly be tried. The estate is very anxious, to have all these matters closed as early and as quickly as possible. Yours, respy., James A. O'Reilly."
Mr. Keim wrote again to Mr. O'Reilly on December 3, 1885 (copy of this letter not preserved, and original not produced), and received the following reply:
"1-5-1886. Dear Sir: Yours of the 3rd ult received. The case against Lindley was continued on account of the engagement of the counsel for the defendant in a murder trial In Camden Co. The matter is to be disposed of at the next term without fail. I am getting rather tired of Jersey justice. I trust you will pardon my neglect in not answering your letter. The same escaped my attention. Yours, respy., James A. O'Reilly."
Mr. Keim wrote again under date of September 15, 1886 (copy of this letter not preserved, and original not produced), and received the following reply from Mr. O'Reilly:
"Reading, Pa., 9/24, 1886. Dear Sir: Your favor of the 15th inst. rec'd. The cause of delay in replying to same was that I desired to see Mr. Voorhees. Your father is aware that I have done all in my power to have the cause tried, and Mr. Voorhees promised me that the case will be tried December term. The delay in the trial of the cause has been very serious to us, as well as to your father, and, though I should be loath to have him throw up the sale, yet I could not find any fault with him for so doing. Prom the tone of your letter, I judged that you held me, in a considerable degree, accountable for the delay. This is a mistake on your part, and, if intentional, I must resent it. As I have stated above, I have done everything to have the matter adjudicated. Yours, respy., James A. O'Reilly."
To which Mr. Keim replied as follows:
"September 27, 1886. Dear Sir: Your favor of 24th inst. received. If my letter to you betokened too great impatience, I trust you will overlook it, in view of the very long delay, which certainly furnished ground for reasonable protest. Moreover, I did not Intend that it should be directed towards you personally, our feeling in the matter being only this: that there might, perhaps, be greater patience towards Mr. Voorhees, in his procrastinating course, than he deserved. As to Mr. Voorhees, we can't help feeling that there has been the veriest trifling, so far as bringing the case forward to trial, and afterwards to hearing in the court of errors, and since. There was long delay in bringing suit, and afterwards, at May's Landing and Trenton, and now at May's Landing again; there have been, at each point, three to four opportunities allowed to pass unimproved. It was this course which called forth my protest to you. If that went beyond a proper consideration for you, you will please overlook it. As to throwing up the purchase, that is something we have never contemplated for a moment. Aside altogether from the question whether or not it be in itself an advantageous purchase, its contiguity to other lands belonging to father makes this tract of special importance and value to him. Permit me to call your attention, further, to a matter which it seems to me ought to have attention now, without waiting for the determination of the Lindley and Rotheram claims. William Williamson is in possession of the lot fronting on Pacific avenue, next to Berry's line, under claim of right in his wife, whose mother (deceased) obtained possession from your father. There is no deed, but Williamson claims that there was an agreement of sale, and that he is holding under it. What he can show in support of his claim, I do not know. I do know that he asserts title vigorously and effectively against all persons; preventing them from driving over, and otherwise trespassing, &c. It seems to me that this ought to be taken up and cared for without delay. If the parties can be put off summarily, all the better; if not, and an action of ejectment be necessary against them also, the sooner it is begun the better. These people are, I suppose, with little if any better claim than that of mere squatters, but we do not know what they have to sustain their position. The Lindley claim was ridiculed by Mr. Voorhees at first, and yet it is taking time and effort to defeat it. So Williamson may have more to sustain him than is supposed. This is, of course, an entirely separate claim from Lindley and from Rotheram's, which two are, I believe, to be settled by the one suit. Yours, very truly, Newton Keim."
Next comes a letter from Senator Gardner to the complainant, dated October 11, 1888:
"October 11th, 1888. D'r Sir: As Mr. James A. O'Reilly understands the status of the Lindley case, from his intercourse with Mr. Voorhees, the case, this time, as after previous reversals, is simply sent back for a new trial, instead of being dismissed. That the title is sustained in every particular that objection can be raised to it; that the only question that can be opened, or rather reopened, is the one on which reversal was based, viz. the matter of the proper probate of the Felix will; that the will can yet be properly probated; and that such action will practically leave no defense at the retrial. Very resp't'y, y'r ob't serv't, J. J. Gardner."
Then a letter from Newton Keim to James O'Reilly, dated November 14, 1890:
"November 14th, '90. Dear Sir: My father (Jacob Keim, of Atlantic City), who called upon you a few days ago in reference to above case, has been informed by Mr. Voorhees that it will not probably betried at the coming term of court, there being a number of criminal cases which will take up considerable time; and, moreover, that he (Mr. Voorhees) did not feel well enough 'to try the case without assistance.' The latter—the ground of ill health—seemed to be the principal reason, and it is, of course, a good and sufficient one. It is, besides, well known that Mr. Voorhees is not in good health, and has not been for some time. In fact, his ill health has continued for such a time, and is of such a character, that his friends fear that he is not likely soon, if ever, to entirely recover. With this in mind, and urgently desiring the trial of the case now, we have given some thought to the suggestion implied in Mr. Voorhees' remark as to 'assistance' in the trial. If Mr. Voorhees does not improve in health, it may indeed be the only way in which his skill and experience and knowledge of the case may be made available. I take leave, therefore, respectfully to suggest the association of other counsel with him in the case; such, of course, as would be agreeable to him personally, and acceptable on other grounds. This will involve Increased fees, but, as I have said, it may be the only way in which Mr. Voorhees' own services can be had; and further, to meet, in part, this objection, my father will agree, in case this suggestion is acted on, and trial had this next term, to contribute a reasonable amount towards the payment of fees,—say $200. This he volunteers, without, of course, any obligation on him to do so, solely with the view of aiding, if possible, in obtaining trial at this term of court, which, for several reasons, is specially desirable to him. I trust you will receive this suggestion in the spirit in which it is offered,—in entire good faith, and respect towards all parties; indeed, carrying out what was implied, perhaps not intentionally, in Mr. Voorhees' own remark. The various uses, or rather abuses, to which the property has latterly been put have made it very annoying and aggravating to those residing near. An effort was made to suppress the howling, noisy railway which passes within a few feet of the rear of our own and other residences, but, for some reason, injunction was refused. Hoping for your favorable attention, very resp'y yours, Newton Keim."
Next in order is a letter from the same to the same, dated April 1, 1892:
"April 1st, 1892. Dear Sir: Would it be agreeable to you and Mr. Voorhees to have Mr. S. H. Grey, of Camden, associated with your counsel in the trial of the Lindley and Rotheram ejectment suits? Mr. Voorhees once suggested to my father that he (Mr. V.) should have assistance in these suits, and in pursuance of this suggestion, and of our own earnest desire for the settlement to be consummated, this proposition is made,—Mr. Grey's services to be paid for by my father. In view of the nearness of April court at May's Landing, please favor with prompt answer, and oblige, yours, truly, Newton Keim."
Now, this correspondence speaks for itself, and shows, not only a claim of right continually made to the agent, Senator Gardner, to the attorney and counsel, Mr. Voorhees, and to the executor, who acted throughout as the spokesman for himself and his coexecutor, but also a full recognition of such right by the three persons named. The ground taken by the defendants is that all this was done by these persons without the knowledge, and behind the back, of the other executors. Is that credible? It Is, certainly, as before remarked, highly Improbable that this large sale should have been first made by James A. O'Reilly, and afterwards recognized by him for all these years, and under the peculiar circumstances which existed, without one word passing between him and his mother and brother about it; and a heavy burden is cast upon those asserting it to show how such a reticence could have been maintained between residents of the same town, and, so far as appears, under the same roof, upon a subject in which each was so deeply interested. In the account rendered in 1890 by the executors to their brothers and sister, of their dealings with the estate, is a charge, item of $64,125, from sale of Atlantic City lots; and on the other side of the account a credit is claimed, as early as 1883, of a payment to J. J. Gardner for grading in Atlantic City, $800, and in 1885 (August 20th) to payment to J. J. Gardner for expenses, etc., in Atlantic City, $1,897.78. Now, the items of which those three entries are made up are not stated, nor are the statements showing them produced; and, as before remarked, the excuse for not producing them is that they were destroyed at the time this account was rendered, and a settlement was had by it. The alleged destruction of those papers is, to my mind, as before remarked, quite as incredible as the absolute noncommunication between the defendants before alluded to; and I am entirely satisfied that in some of them were entries made of the payments to Senator Gardner by Keim, made on account of these contracts; and if, as I have before remarked, payments were made, then the presumption is that Senator Gardner gave some receipt for them, and that the receipt indicated on what account the payments were made, and would probably amount to a contract by their agent. I do not understand that Francis O'Reilly denies that he looked through all these papers, and saw to it that the account that he rendered was correct; but he denies that he has any recollection of seeing any charge by Senator Gardner to himself for any moneys received on account of these contracts, or otherwise, from Mr. Keim. Here, again, as I before observed, I am unable to believe him. In fact, I feel constrain ed to say that his evidence, throughout, with regard to his dealing with the lands in Atlantic City, was to me quite unsatisfactory.If, as I believe, he did see a charge made by Mr. Gardner to himself (Gardner) of payments received from Keim on account of lots sold, then I have not the least doubt that he knew upon what lots, and the prices at which they were sold, and that he knew that they were part of the lots in controversy in the suit, and that the delay in closing the sale was caused by the litigation then pending. James A. O'Reilly admits frankly that he learned at the time, from Mr. Gardner, of the $10,000 sale to Mr. Keim, and was satisfied with it. He, too, is chargeable with knowledge that payments had been made on account of these contracts. In his letter of March 29, 1881, he says lot No. 4 was sold to Mr. Keim for $2,500. Now, as before remarked, I cannot believe that he did not by that mean to say that a contract of sale, of more or less binding force, under the statute of frauds, had been made with Mr. Keim. And so, when he writes to Mr. Newton Keim, in his letter of September 24, 1886, that he should be loath to have Mr. Keim throw up the sale, he must have been speaking of a sale having binding qualities of some sort, as applied to land. He swears he had no idea that any written contract was made. Here, again, I must frankly say I do not believe him. The question now is whether he did not know that money had been paid by Mr. Keim on account of these sales, and if he did know it he is chargeable with knowledge that in the ordinary course of business a receipt had been given which might, and probably would, amount to a contract on the part of the executors to convey. With regard to the receipt of the money, the same presumption— though, of course, with not the same force— applies to Mrs. O'Reilly. Now, the conduct of the executors in receiving and retaining this money was a ratification and adoption of the contract. Lord Justice Pry, in his book (section 509), already referred to, says: "Ratification may take the place of agency. Here the maxim applies, 'omnis ratihabitio retrotrahitur et mandato aequiparatur"; and therefore the subsequent ratification of a contract entered into by a person then unauthorized as agent takes it out of the statute. And this ratification need not be by any express act. It is enough if the party whose authority is required take the benefit of the contract, or even if, with a full knowledge of it, he passively acquiesce in it for a length of time longer than that reasonably to be allowed for the expression of dissent" In the case in hand, we have both the receipt of the benefit of the contract, and long-continued acquiescence in It That subsequent adoption by the principal of an unauthorized signing of his name to a contract, within the statute of frauds, has the same effect as if the authority had been given previous to the signing, was directly ruled in Maclean v. Dunn, 4 Bing. 722, and is settled law. Some language used by Judge Denio in Newton v. Bronson, 13 N. Y. 587, is relied upon to show that this rule does not apply to the case of a delegation of power by a trustee. Whatever was so said was a mere dictum, and not necessary for the decision of the case in hand; but, as I read the opinion, it goes no further than this: that it must appear that the trustee somewhere, and at some time, exercised his discretion and judgment. I do not see any difficulty in his exercising discretion and judgment after an unauthorized sale as well as before. It is urged that, in order to make the retention by the parties of the benefit of the unauthorized contract a ratification of it, it must appear that the principal knew the terms and character of the contract Such is the general rule. But it must be applied with caution. A principal is chargeable with such knowledge as is within his easy reach. There was here no concealment on the part of either the agent or the purchaser, and the least inquiry by the principals would have elicited the truth. Mr. Keim had every reason to suppose that the executors knew the particulars of his contract, and they had no right, in equity, to keep his money, and plead ignorance of the details of the contract which they had given him for it.
We come now to the text of the contracts, as to which objection is made that they contain provisions not within the authority of the agent.
The first contract contains this provision: "Deed to be made and delivered so soon as practicable,—not longer from the present time than one month." It is urged that the insertion of the limitation of one month was without authority, and rendered the whole contract void. It was evidently inserted for the benefit of the vendor, in order to give him time to procure the preparation and execution of the deed; and it left him at liberty to prepare and execute it at once, and demand the purchase price. It is difficult to perceive how a more simple contract could have been devised. The established canon governing cases of this kind is, as before shown, that authority to an agent to accomplish a certain matter carries with it, by implication, authority to do everything necessary to that purpose. Valentine v. Piper, 22 Pick. 85; Goodale v. Wheeler, 11 N. H. 424, where it was held that commissioners authorized by a municipality to sell a piece of real estate at auction, upon terms named in the resolution of authority, were, by implication, authorized to add such other terms as were reasonably proper for insuring the sale, and that requiring a down payment from the purchaser was such a proper term. See Story, Ag. §§ 58, 60.
The second contract presents more difficulty. Several exceptions are taken to the verbiage of it.
First, it is said that the clause providing for freedom from incumbrances and opposing or controverting claims of title, and undisputed possession, is unwarranted, as well as the 00-day clause. Now, as to the provisionfor good title, it seems clear enough that if that clause had been omitted the contract would—in the absence of evidence that the vendee agreed to be satisfied with such a title as the vendor had—have left the vendee at liberty to refuse to accept the deed and pay the purchase money, unless the title was merchantable, and accompanied by possession, in the sense of being free from adverse possession. Lounsbery v. Locander, 25 N. J. Eq. 554; Pom. Spec. Perf. §§ 188-203. A vendee will not be compelled to buy a lawsuit. Dobbs v. Norcross, 24 N. J. Eq. 327. It follows that the clause in question did not change the effect of the contract, to the prejudice of the vendors. It was certainly quite proper to insert it, considering that the premises were then held adversely, and a lawsuit to eject the adverse holder was imminent. Hence, its insertion was quite within the province of the agent, who was in this case intrusted with the preparation of the contract by the counsel of the executors, himself one of them. I say this because Mr. James A. O'Rdlly, himself an executor, was acting as counsel for the others, and himself verbally agreed to sell the lots in question (Nos. 5, 6, 7, and 31) to Mr. Herring for $10,000, and sent him to Senator Gardner with a letter to that effect. Now, that was authority to Senator Gardner to do something with Mr. Herring about that sale. Senator Gardner declined to make a sale to Mr. Herring upon the ground that Mr. Keim had made the first offer at that price, and was entitled to the property, and proceeded to give Mr. Keim the contract in question. Mr. James A. O'Reilly was informed of this refusal to sell to Herring, and of the sale, instead, to Mr. Keim, and acquiesced in it. Hence, I think that the affair must be construed as being done under the direction of Mr. O'Reilly, quite as much as it would have been if the contract had been with Herring instead of with Keim. Mr. O'Reilly must have expected that Senator Gardner would enter into some sort of an arrangement as to the title. With regard to the provision for 60 days' notice of readiness to complete, I think the same considerations apply. The balance of the purchase money—$9,500, a large sum—was to be paid in cash. Surely, it was but reasonable that the purchaser should have proper time, not only to raise that sum, but also to investigate, and assure himself that the title was perfected by the contemplated legal proceedings; and I think that all will agree that 60 days was no more than a reasonable time, under the circumstances. But, in point of fact, complainant does not and never has taken any advantage or made any claim under that provision.
The remaining objection to the second contract relates to the description of the premises, and the price named,—$10,000. The description of the land found in this contract, properly construed, as applied on the ground, includes not only lots 5, 6, 7, and 31, referred to in Mr. James A. O'Reilly's letter of March 29, 1881, and which were attempted to be sold by him to Mr. Herring, but also lot No. 4, covered by the first contract This is manifest from a reading of the description in connection with a diagram and the last sentence,—"including all the lands and right of said estate between Pacific avenue, the riparian line, and beyond [between] New York and Tennessee avenues." See diagram. This clause was added in order to correct, without erasure, a mistake in writing "150" instead of "200" feet in the sixth course. The contract, with the exception of the distances in the fifth, sixth, and seventh courses, and the clause quoted, was prepared by Mr. Newton Keim. The distances in the sixth course and the last clause are in Senator Gardner's handwriting. There is no dispute as to the fact that the intention of both Mr. Keim and Senator Gardner, in this writing, was to include lot No. 4, covered by the first contract; and, on the other hand, it can hardly be seriously contended that it was intended by Mr. Keim thereby to obtain a contract for all the land at $10,000. He disavows it, and does not and never has made any such claim. To do so would be absurd, in the face of the correspondence between James O'Reilly and Senator Gardner, and between the latter and Mr. Keim, in the spring and summer of 1881.
Complainant founds his right upon both contracts, and offers to pay the sum of the prices named in the two, viz. $12,500. The object of including lot No. 4 In the second contract was not expressly explained by the proofs at the hearing, probably because it was so manifest to the court as to require no explanation. The block of land in which the premises in dispute is situate is bounded by New York avenue (running at right angles with the ocean) on the west; and by Tennessee avenue, parallel with New York avenue, on the east; by Pacific avenue on the north; and by the ocean on the south. Mr. Keim was the owner of a 50-foot strip running along the east side of New York avenue from Pacific avenue to the ocean. Mr. O'Reilly was the owner of four strips, each 50 feet wide, to the east, or in the rear of Keim's lot, numbered 4, 5, 6, and 7, not fronting on any street, but reaching to the ocean, and he was also owner of a lot, No. 31, between No. 7 and Pacific avenue. The subject of the first contract was lot No. 4. There was no dispute as to this, as clearly appears by James O'Reilly's letter of March 29, 1881. Nor is there any difficulty in applying on the ground the rough description found in the first contract, as follows: "Lot of land fifty feet in width, adjoining on the rear the land now owned by said Jacob Keim, which land fronts on New York avenue, in Atlantic City aforesaid, and which strip to be conveyed runs the entire length of the said land of said Jacob Keim." Butit was manifestly not such a description as a purchaser would desire to have put in a deed. Hence, Mr. Newton Keim, in view of a contract for the other lots, desired, naturally enough, to have a contract with such a description of the five lots combined as would be proper to insert in the deed of conveyance, and attempted, in his second contract, with the aid of Senator Gardner, to frame such a one. He may also have had in mind a ratification by Mr. Gardner, for the executors, of the first contract; but why, with James O'Reilly's letter just referred to within his reach, he should care for such a ratification, I am unable to see. Now, the question is, does the insertion of a description of lot No. 4 in this second contract, for the purpose and under the circumstances stated, and without any fraudulent intent, avoid the contract as to the other land, the sale of which at the price named was, as we have seen, within the authority of the agent? Upon the hypothesis there can be no dispute but that the defendants did intend to agree to convey lots Nos. 5, 6, 7, and 31 at the price named, and it is quite clear that by the contract they did so agree. On the principle that the greater includes the less, lots Nos.
6, 6, 7, and 31 are clearly described. In answering the question above put, it is to be observed that there is here no attempt to add to the writing by parol something not there found. The precise complaint is that by the writing the defendants are made to agree to something they did not intend to agree to, namely, convey, not only lots Nos. 5, 6, 7, and 31, but also lot No. 4, at the price named, namely, $10,000. Now, if the complainant were here asking the enforcement of the contract as it actually reads, for the price therein named, the defendants' contention would be unanswerable, for it is admitted that such was not the intention of the parties. But the complainant is not asking such relief, and asks only just what defendants must, pro hac vice, admit to be the true contract, viz. to convey lots Nos. 5, 6,
7, and 31 for $10,000. Hence, it is difficult to see how the defendants are injured by the mere insertion of a description of lot No. 4 in the second contract. Nor is the statute of frauds infringed, for the lots intended to be conveyed, and the specific conveyance of which is asked, are actually described. It is not a case of introducing parol evidence to add to the thing agreed by the written contract to be conveyed, and then asking the court to decree performance of it as so amended, as against a vendor who would be injuriously affected by the addition. On the contrary, it is the showing by parol that something is included in the written description of the thing to be conveyed which does not properly belong there, and asking the court to eliminate it, and to perform the contract without the improper addition. Thus stated, I am unable to see any inequity in the complainant's request, or any reason in equity, or in the statute of frauds, why ha should not have relief.
The decided weight of authority favors that view. Pry, Spec. Perf. (3d Am. Ed., from 2d London Ed.) §§ 730-739. The learned author, in section 736, says: "We may now proceed to consider the effect of a parol variation set up by the defendant as a ground for refusing the specific performance of a written contract by the plaintiff. 'It depends on the particular circumstances of each case whether the variation is to defeat a plaintiff's title to have a specific performance, or whether the court will perform the contract, taking care that the subject-matter of this parol agreement or understanding is also carried into effect, so that all parties may have the benefit of what they contracted for.'" The quotation is from a considered opinion of Lord Cottenham in Railway Co. v. Winter, Craig. & P. 57, at page 62; and he cites in support of the proposition Joynes v. Statham, 3 Atk. 388; Marquis Townsend v. Stangroom, 6 Ves. 328; and Ramsbottom v. Gosden, 1 Ves. & B. 165. In the case reported in Craig & P., Lord Cottenham decreed against the defendant vendor the specific performance of a contract in writing, to which the defendant had proven at the hearing an additional term, adding in the terms of the decree the additional term so proven. The same thing was done by Lord Hardwicke in Joynes v. Statham. Ramsbottom v. Gosden, 1 Ves. & B. 165, was a bill for the specific performance of a written contract to convey land, by vendee against vendor, and the defendant proved that the written contract was not according to the parol agreement, in that the complainant was to pay certain costs and expenses, not therein mentioned; and the court, being of that opinion, gave the complainant the relief prayed for, upon condition that he would pay the additional costs, and expenses proven by parol, but not included in the written contract Robinson v. Page, 3 Russ. 114, was a bill by vendee against vendor for the specific performance of a conveyance of land, in which the complainant set out one contract, and defendant proved another. The court gave the complainant specific performance, giving the defendant the choice of which of the two he would have performed. Martin v. Pycroft, 2 De Gex, M. & G. 785, was a bill by lessee against lessor for the specific performance of a written contract to give a lease, the terms of which were correctly stated in the contract; but in addition thereto the complainant had verbally agreed to pay £200 as a down payment, which agreement was not stated in the written contract in his bill he set up the agreement to pay the additional sum of £200, down money. The court granted the specific performance upon condition of paying the £200. Smith v. Wheatcroft  9 Ch. Div. 223, was an action by vendee against vendor for the specific performance of a written agreement to conveyland. Defendant set up that the agreement sued upon was not the true agreement; stated wherein it was untrue. The plaintiff assented to the change; prayed for a decree of the contract, as varied by the defendant's evidence; and Lord Justice (then Judge) Pry decreed accordingly, after a review of all the cases. In Smith v. Allen, 1 N. J. Eq. 43, the bill was filed by the obligor of a bond, against the obligees, to change the verbiage of the bond, and, as changed, to enforce it; and it was done accordingly, after consideration of all the cases. Again the same thing was done in Hendrickson v. Ivins, 1 N. J. Eq. 569. Wallace v. Brown, 10 N. J. Eq. 308, was, in effect, a suit for specific performance by vendee against vendor. The question turned upon one of price, defendants claiming that the contract was $500 more than the complainant stated. A conveyance was decreed upon payment of the larger sum. Ryno v. Darby, 20 N. J. Eq. 231, was a bill for specific performance brought by vendee against vendor. The contract was by parol. The equity relied upon was part performance. The defendant did not deny the bargain, as alleged by the complainant, but set up and proved a subsequent varying of it by parol. Specific performance was decreed of the contract as proven by the defendant.
Prof. Pomeroy (section 254), in discussing the subject of specific performance, with a variation by parol of the written contract, points out the necessity, in considering the decided cases on this topic, of keeping constantly in mind the different relations which may exist between the parties, and says (section 255): "As has already been shown, upon the defendant's proof of an error or a parol variation in the contract alleged by the plaintiff, the plaintiff is not necessarily dismissed without any relief. He may often, and perhaps generally, elect whether to take a dismissal of his suit, or decree for the specific performance of the contract in its modified form, as proved by the defendant A decree reforming the contract in accordance with the defendant's proof, and enforcing it as thus corrected, may also be granted on the defendant's demand." And he cites some of the cases already above cited. He then shows (sections 259, 260) that, while the disposition of the English courts is against specific performance with a parol variation, in this country (section 261 et seq.) the courts allow the complainant to allege the variation, and to enforce it, so varied; citing a great number of cases, the leading one being Keisselbrack v. Livingston, 4 Johns. Ch. 148. He proceeds to state (section 263) that the application of the doctrine should be, and in many of the states is, so confined and applied as not to infringe upon the statute of frauds by adding, to the subject-matter of a written contract to convey realty, land not described in It; but he says that this consideration does not reach the cases of excluding by parol land in cluded in the written description. In other words, that, in a suit by a vendee against the vendor, parol proof may not be resorted to by the complainant for the purpose of enlarging the scope of the writing, in the way of conveying more land, but it may be used for the opposite purpose, viz. to narrow the scope, and reduce the quantity of land to be conveyed; and in such cases the variation— being in favor of the defendant, and working him no injury—cannot be set up by him as a defense. This seems to me to be according to common sense and general principles of equity, and I think that most of the cases can be harmonized by bearing in mind the relations existing between the parties, and whether it be a suit by vendee against vendor, or the contrary, and whether the effect of the evidence is, when the suit is against the vendor, to increase the quantity of land which he agrees to convey, or whether it be, in such case, to diminish the land which he is asked to convey. Apply that rule here, and the objection vanishes. With regard to the provisions in the second contract for a complete title, and 60 days' time after its completion for execution by the complainant, it is further to be observed that complainant has, by his bill, waived both provisions. He has not waited for all the suits to be determined, nor does he ask for compensation by reason of the adverse possession of Lindley or Williamson; the latter being at the filing of the bill in possession, as I understand, of lot No. 31.
Were these contracts fair in all their parts at the time they were entered into? The parties were dealing at arm's length. There were no relations of trust or confidence between them. Both were entirely competent to take care of themselves. The details of the affair on the part of the defendants were managed by Mr. James A. O'Reilly, an intelligent lawyer, and himself one of the executors, and also one of the cestuis que trustent, and by Senator Gardner, a thoroughly competent and reliable real-estate expert; and both of them were perfectly familiar with the situation and surroundings of the lands, and with the prospects of Atlantic City. The price was fixed by these men, and, as to lots Nos 5, 6, 7, and 31, was more than that fixed by the elder O'Reilly, which was $9,500, or, as I infer from Senator Gardner's evidence, $2,500 each for Nos. 5, 6, 7, and $2,000 for No. 31. Mr. James O'Reilly demanded $4,000 for No. 31, and preferred not to sell the others without it. He finally came down to $10,000 for the whole, which complainant accepted, though preferring to buy only Nos. 5, 6, and 7. Now, hi fixing this price and making this sale, there is not, and cannot be, the least pretense that the rights of cestuis que trustent were not fully protected. There was no neglect of their interests in that behalf by the trustees. There is not a lisp of evidence to show that the price fixed was not a full one at the time.
It is said that the contract is unilateral, in that complainant was not bound to pay, and that this quality renders it unfair, as against the cestuis que trustent. I do not think that the circumstances warrant this criticism. In the first place, no contract upon which a substantial payment is made can be properly held to be entirely unilateral. If the purchaser does not tike the title, he loses his payment. In this particular case the location of the property in the rear of the complainant's strip rendered it highly improbable that he would recede from his bargain. Moreover, the property was not in a situation to depreciate in value by dilapidations or other ordinary causes. So that the fact that the contract was in a measure unilateral does not, as it seems to me, show any neglect of duty on the part of the trustees towards their cestuis que trustent. It is too late at this day to set up the unilateral feature as a defense, even if it existed in all its completeness, which it does not. Green v. Richards, 23 N. J. Eq. 32. As before remarked, the payment on account was small, but substantial.
It is said that making the contract in the shape it was placed the defendant trustees in a position where they were obliged to bear the expense of heavy and long-continued litigation, without any obligation on the part of the purchaser to pay even the contract price, beyond the trifle already paid. This was, perhaps, a good reason for not making any present sale at all, and, in the light of subsequent occurrences, perhaps it would have been wiser not to contract to sell until the litigation was closed. But the parties acted deliberately upon the situation as it then appeared, and a mere mistake in judgment will not avail them. In fact, no one then supposed that clearing the adverse possession would prove to be a serious matter, or occupy any great length of time. All acted on the contrary supposition. It is now too late for the defendants to set up their mistake of judgment in a matter of that kind as a defense to a contract fair in all its parts. The contract must be judged by the circumstances as they then existed. Fry, Spec. Perf. (3d Am. Ed.) § 370; Pom. Cont § 177.
2. The next position taken by the defendants is that the complainant has slept upon his rights, and has not been ready, desirous, prompt, and eager, and has not come to the court as promptly as the circumstances permitted him. I am unable to see anything in the proofs to sustain this point. By the plain terms of both the contracts, the trustees were to make the first move, by executing and tendering the deeds, or a deed. I can see no escape from this conclusion. It was so held by Chancellor Zabriskie, upon a contract in substantially the same language, in Huffman v. Hummer, 18 N. J. Eq. 83. The complainant was not in default until a conveyance was tendered. No demand of a performance was ever made by the executors on complainant, and he never was in the least default. Neither was there any rescission, or attempted rescission, on their part, to put him on his guard. But the complainant's equity does not rest on any such narrow ground. The evidence, both parol and written, above referred to, shows that both parties were waiting upon the determination of the litigation involving the title. Complainant was at all times urging on the prosecution of the suits, so that he might get his title, and the defendants were at all times aware of his attitude in that respect There is not the least glimpse of proof that they were ever in the least doubt as to it, or that they ever supposed—much less, acted upon the supposition —that he had abandoned his contract or intended to do so. They knew complainant's desire to complete the contract, and the fair inference from the evidence is that they did not ask him to complete because they were not themselves able to give a merchantable title. The trustees never intimated to complainant that they considered him in default, but acted towards him, up to the last, as if they intended to convey. There is not the least particle of evidence to show that complainant was at any time speculating upon the situation, and waiting to see whether the premises might or might not increase in value, with a view to complete the contract in the one event, and abandon it in the other. The attitude and conduct of the complainant in this respect is always one which attracts the attention of the court. The rule requiring promptness on the part of the complainant is mutual, and requires the defendant to be ready, desirous, prompt, and eager, if he will take advantage of complainant's delay. Pom. Cont. § 403. And the same learned authoi lays down the just rule (section 405) that the defendant can never take advantage, as a defense, of a delay which he himself has caused. Here the cause of complainant's delay was the failure on the executors' part to show a clear title. It does not lie to their mouths to say that the complainant was in laches as long as they (the executors) were not able themselves to perform, and made no tender of performance, and so long as they did not repudiate the contract, by intimating to the complainant that they would not perform when they became able to do so. I have looked at numerous cases cited by defendants' counsel on this point, and find none to conflict with the views above expressed. In fact, I deem them so clearly fundamental that, but for the earnestness of defendants' argument, I should not have taken time to discuss them. I think it proper here to observe that in my judgment the executors have held themselves open to the charge of laches in prosecuting the suits necessary to clear their title. The actions of ejectment might have been brought in April, 1881, but their commencement was delayed until January, 1882. After the reversal by the court of errors and appeals at the July term, 1884, of the judgmentrecovered against Lindley on the first trial, the cause slept until December, 1886; and after the reversal of the judgment, upon the verdict upon that trial, the cause was not noticed until April, 1892,—a period of over three years. The suit against West and Rotheram to recover possession of lots Nos. 4 and 5 slept, without being noticed for trial, so far as appears, from January, 1882, to April, 1892. The first reversal in the Lindley case was founded upon an unguarded expression of the trial judge in his charge to the jury, for which it does not appear that the defendants herein were responsible; but the second reversal was caused by a palpable, but easily curable, defect in the paper title of the executors, for which they are wholly responsible. Had these suits been properly prepared for trial, and promptly tried, the title might have been established as early as 1885.
3. I come now to the final point taken by the trustees, which in fact constitutes the real defense, if any they have, to the action, and furnishes the real reason for seeking to avoid the performance of these contracts, viz. the great expense incurred in the perfection of the title, and great advance in the market value of the land. It is now worth about 10 times the contract price. The evidence tends to show that the increase has taken place, principally, within two or three years. This matter of expense, and the change in value, is put forward as such an unanticipated change of circumstances as will render the specific performance of the contract inequitable. Prof. Pomeroy (section 408) lays down the rule that this change of value, in order to operate as a defense, must either grow out of, or be accompanied by, an inexcusable delay on the part of the complainant; and he adds that neither a rise in value nor a depreciation, nor a loss or injury to the property, will, in the absence of unreasonable delay in the plaintiff, avail the defendant as a bar to the relief sought by the complainant. This follows from the general and familiar rule that the fairness of a contract must be judged of as matters stood at its date. Lord Justice Fry, in his Treatise (3d Am. Ed., from the 2d English Ed. § 418 et seq.), takes the same view, and says (section 420) that the question of the inadequacy of consideration (for this is the real defense here) must be decided as of the date of the contract, and not in the light of subsequent events. Prof. Pomeroy modifies that doctrine by sections 175-186; holding that the change in value, due to unexpected causes, not reasonably within the contemplation of the parties, may amount to an excuse. In my opinion, the mere increase iu the market value of the land between the date of the contract and its execution should not excuse the vendor from its performance, unless the vendee has been in some degree responsible for the lapse of time, or the increase has been the result of some extraordinary cause or causes, not within the reasonable contemplation of the parties at the date of the contract. A change in the value is always in the contemplation of the parties, and especially is this so with unimproved land, like that here in question, lying in the outskirts of a growing town or city. In such cases the present market value depends upon the rapidity and character of the growth of the town, in connection with the rate of taxation and the cost of assessments for improvements. These are, in a great measure, a matter of speculative judgment in each particular case. In all such cases an increase in value is expected. In the case in hand the increase was greater than the owners anticipated, but it was the result of causes which were in full operation, within the knowledge of the parties, at the time of the sale. No new cause of increase has come into play; at least, none was proven or suggested. Nor is the increase due to any unexpected development peculiar to the property itself, such as the finding of a gold mine or a valuable bed of clay upon it, not suspected to exist at the time the contract was made. Nor is it due, in the least degree, to a decrease in the purchasing power of the currency of the country. It is a matter of common knowledge that the price of all matters of bargain and sale, including farm and unimproved land generally, except land in or near towns and cities, rents, and wages, have fallen within 20 years, so that the purchasing power of our currency has increased, rather than declined. In fact, this increase in the purchasing power of the currency has been so great and marked as to furnish a stock argument for those political economists, so-called, who are urging the debasement of the currency, by the free coinage of silver, for the very purpose of raising prices to their former standard. But while an increase in the market value of the lands here in question was reasonably to be expected, and of itself, under the circumstances, was no excuse for nonperformance, yet I am satisfied that the great length of time required to settle the title, and the considerable expense, as is alleged, attending it, was not, and could not reasonably have been, anticipated; for while there is some reason to suspect, from subsequent occurrences, presently to be mentioned, that the delay in bringing the causes to trial was due in part, during the latter years, to a desire to tire out the complainant, and get rid of these contracts, yet I am unwilling to adopt that view, or charge the defendants with suffering delay for that purpose. But while the defendants stand acquitted of intentional delay, and ought, on account of their innocence, not to suffer any loss on account of the delay, it by no means follows that they ought to be permitted to make a gain out of it, as against the complainant, who is entirely innocent in the premises. It would be unjust to complainant not to bear in mind, in this connection, that if the lands had been conveyedto him, according to the contract, he would, in the ordinary course of events, have had the benefit of the rise in value. It was precisely that right that he purchased. This follows from the rule that, in equity, the purchaser by contract is the owner, and the seller holds the title simply in trust for the purchaser, with a lien upon it for the unpaid purchase money. To deprive the purchaser of the benefit of the rise in value is to deprive him of the benefit of his contract. I know of no principle recognized by a court of equity by which it can be done; I repeat, then, that the defendants in this case cannot be permitted to make a gain out of their delay. At the same time that I acquit them of any intentional delay, I think they ought not to suffer any loss not fairly within the reasonable contemplation of the parties. At the hearing the complainant offered to submit to such terms, in this respect, as the court might impose, and herein I find the solution of the problems presented by the facts in this case in consonance with the doctrines of equity.
It remains to consider some of the numerous adjudged cases cited by defendants upon this part of the case:
Perkins v. Wright, 3 Har. & McH. 324, was a bill by vendee against vendor, where the contract was to pay in bills of credit issued by the state of Maryland during the war of the Revolution, which had greatly depreciated in value. Relief was refused on that ground. Proceedings on appeal from this decree were abated by the death of both parties.
Daughdrill v. Edwards, 59 Ala. 424, was a bill by vendee against vendor upon a contract, made during the late war, for the conveyance of land, and payment therefor in Confederate currency, which, before the contract was completed, became worthless, and performance was refused.
Willard v. Tayloe, 8 Wall. 557, was a case of vendee against vendor, founded on a lease for 10 years, dated in 1854, with an option to purchase, at a price named, at any time within the 10 years. Before the option matured, the war of the Rebellion broke out, real estate in Washington advanced rapidly in value, by reason of the resulting increase of business with the various governmental departments there. Greenbacks were issued, and became at a large discount, measured in gold. Specific performance was refused, unless complainant would pay in gold, but it was decreed on those terms. It was expressly declared that the increase in value, though caused by an unexpected event,—the breaking out of the war of Rebellion,—ought not to defeat the remedy; the contract having been, at the time it was made, fair in all its parts. But the depreciation of the currency, as the result of the legal tender act, was put upon a different basis. The power of the court to impose terms on the complainant was also affirmed, upon a consideration of the authorities. At page 567 the learned judge says: "It must also appear that the specific enforcement will work no hardship or injustice, for, if that result would follow, the court will leave the parties to their remedies at law, unless the granting of the specific relief can be accompanied with conditions which will obviate that result. If that result can be thus obviated, a specific performance will generally, in such cases, be decreed conditionally. It is the advantage of a court of equity, as observed by Lord Redesdale in Davis v. Hone, 2 Schoales & L. 348, that it can modify the demands of parties according to justice, and where, as in that case, it would be inequitable, from a change of circumstances, to enforce a contract specifically, it may refuse its decree unless the party will consent to a conscientious modification of the contract, or, what would generally amount to the same thing, take a decree upon condition of doing or relinquishing certain things to the other party." The case is a very clear authority for the conclusion at which I have arrived on this part of the case.
Young v. Rathbone,' 16 N. J. Eq. 224, was a suit by vendor against vendee upon a purchase by the defendant at a public sale by complainant, as administrator. The deed was to be delivered on a day named. Defendant was ready at that time, but complainant could not then make a good title. By a subsequent act of the legislature, the defect of title was cured, and a deed tendered to, and refused by, the defendant. Under these circumstances, Chancellor Green, though holding to the rule that generally time was not of the essence of the contract, refused relief, saying (page 228): "But in this case, between the time fixed for the delivery of the conveyance, in December, 1860, and the subsequent tender of the deed after the title had been perfected, circumstances had materially changed. A civil war had broken out, and the value of real estate was depressed. It could not be consistent with the real intention of the parties, or with the real justice of the case, to compel the vendee, under such circumstances, acting in good faith, to accept a deed, against his will, which he was ready and willing to accept at the time fixed for performance." It is to be observed that the complainant was in default, in not making a good title on the day named, and was asking to be relieved from the effect of his own default. The defendant was not in default, and the change in the value of the property was the result of causes not in active operation at the date of the contract, and which could not have been reasonably within the anticipation of the parties. Moreover, it is quite manifest that, had the action been brought by the vendee against the vendor, relief would have been granted, on the ground that the vendee had not been in default.
Merritt v. Brown, 19 N. J. Eq. 293, is another example of change in value due to extraordinary and unexpected causes. It was an attempt to enforce a parol contract givenby the defendant to the complainant to permit him to redeem lands sold at sheriff's sale, and purchased by the defendant. The sale took place March 21, 1861, shortly before Ft. Sumter was fired upon. The Immediate effect of the war which followed was, as In Young v. Rathbone, a great depreciation in value of the property, so that complainant was unable to redeem, and abandoned the property. Afterwards, greenbacks were issued, with the effect, as in Willard v. Tayloe, of inflating values, and then complainant asked to redeem. At page 293, Chancellor Zabriskie says: "In this case the commencement of the war, by the attack on Ft. Sumter, between the sheriff's sale and the time to redeem, had alarmed the community. Prices were unsettled, and few were willing to purchase real estate at all. Within the extension of sixty days, the disaster at Bull Run had further unsettled values, and rendered the purchase of real estate undesirable. In this condition of things, the complainant failed to redeem, according to agreement, and left Brown to pay the money, and fixed with what must have appeared a bad purchase. He made no effort—he considered himself under no obligation—to redeem the property. But after two years, when, by the effect of the legal tender act, the country had been flooded with a large amount of paper money, not convertible into gold, and worth far less, and the relative value of land and this money had changed, the complainant, seeing that something was to be gained by him, and lost to Brown, by his performing, at this late day, his part of the contract, offers to pay, and asks for the property. The mere statement of the transaction shows it to be too unconscientions to be entitled to aid in this court. It is a case where time is clearly of the essence of the contract, and to which the rule of equity, that a party, to entitle himself to the aid of this court in enforcing specific performance of a contract, must have himself been ready, willing, and eager to perform on his part, clearly applies."
Peters v. Delaplaine, 49 N. Y. 362, was an action by vendee against vendor, or rather by and against the representative of each, for the specific performance of a contract on the part of the owner, on a particular day and hour and place, to convey a satisfactory title, free of incumbrance, and, on the part of the purchaser, to pay a fixed price. The vendee tendered performance, and the vendor failed to perform, assigning as a reason that his wife would not join in the deed. The vendee refused to accept a deed unless the wife joined. The vendor died about two years later, the vendee died six years later, and the widow of the vendor died fourteen years later. Suit was commenced seventeen years later. The court held that the vendee's right of action accrued as soon as the defendant refused to convey, upon the excuse made by him, for the reason that his remedy was then complete to have a conveyance, with indemnity against the inchoate right of dower in the wife (such as was given in Young v. Paul, 10 N. J. Eq. 401), and that, although the statute of limitations was not an absolute bar, yet the long delay, without any excuse, made a defense in analogy to that statute. The court also relied upon the circumstance that in the meantime, upon the death of the vendor, the property had been settled upon trusts, so that the title was seriously entangled. It had greatly increased in value, and the taking of a satisfactory account of the rents and profits would have been practically impossible.
Combs v. Scott, 76 Wis. 662, 45 N. W. 532, was an action for specific performance of a contract to convey, the consideration of which was the settlement of a litigation between the parties. There was an immediate demand of the conveyance, and it was refused. The vendee acquiesced in the refusal for six years, and then brought suit for specific performance. In the meantime the taxes had been paid by the vendor, and he had received no income. The lands were wild timber lands. A railroad had been built in the neighborhood, and the lands, as a result, had increased greatly in value. Specific performance was refused, but damages were awarded in lieu thereof. No excuse was offered on the part of the plaintiff for the delay.
In Fitzpatrick v. Dorland, 27 Hun, 291, the defendant, a helpless female, became entitled to some vacant lots in the upper part of the city of New York; producing no rent, but involving a present outlay of considerable sums for assessments and taxes. She made a contract with a person not a party to the present suit, in April, to convey on a day named, and tendered a deed; but the contractee failed to perform, and, as the court subsequently held, thereby lost his right to specific performance. He, however, brought a suit against her in June for specific performance. The day after that suit was commenced, she entered into a contract with the plaintiff, Fitzpatrick, to sell the lots to him at a price named, and to give him a good title. The litigation under the first suit lasted for 15 years, and was very expensive, but finally successful, to the defendant. In the meantime she had mortgaged the premises in order to pay the taxes and assessments, which were heavy, and had received little or no income from it. After the determination of the suit of the first vendee, Fitzpatrick, the second vendee, brought this action, demanding the letter of his contract; that is, to have a perfect title to the property, at the price fixed bythe contract, without any allowance for loss of interest, taxes, or assessments. Specific performance was refused. In dealing with the case, the court uses this language: "After fifteen years of litigation on defendant's part to protect her title to the property, theplaintiff now asks specific performance of the contract, according to its original terms. It is evident that the parties to the contract in question never contemplated so long a delay in its consummation. That the vendor should bear all the burdens (taxes, assessments), without any income of the property, for fifteen years, and then be compelled to convey it for the contract price, would seem inequitable, especially when the value has increased threefold. The amount paid for taxes, assessments, and interest on the premises nearly equals, if it does not exceed, the contract price. Equity will not decree specific performance in a case where it would work injustice, and where the parties never expected or intended the results that have followed their action"; referring to Peters v. Delaplaine, 49 N. Y. 362, above stated, and Margraf v. Muir, 57 N. Y. 155. The latter case was a suit by vendee against vendor for specific performance, with an alternate prayer for damages. Defendant was the widow of one Muir, and resided in Brooklyn. He died seised of a lot of land in Westchester county. Of his six children, three were minors. The defendant had no knowledge of the value of the land. Plaintiff did have knowledge, and knew it was worth $2,000. Concealing this knowledge of value, he went to the defendant, and obtained a contract from her to purchase it at $800. She contracted in her own name; expecting that those of her children who were of age would unite with her in the conveyance, and that she could get from the court the right to convey on behalf of her minor children. In the meantime, before the contract was made, the property had been sold for taxes, and it was utterly impossible to make the conveyance. The plaintiff fell back on his alternate relief by way of damages, and the referee found in his favor $1,200, the difference between the real value and the contract price. The court held that the contract should not be specifically enforced, on account of its original unconscionableness; and they also reduced the damages to the down money paid ($25), and interest.
These are the principal cases relied upon by the defendant executors upon the defense of increase of value, and the statement of them shows that they have no application to the present case. I think the complainant is entitled to relief against the O'Reilly devisees.
4. This brings me to the last point in the case, viz. the claims of purchasers under the O'Reillys. Each of the four strips composing the whole tract has been conveyed away, and at the hearing complainant expressed his desire to have the land itself, rather than the proceeds of the sale received by the vendors. This renders it necessary to examine and determine whether the purchasers had notice of complainant's claim at or before making payments, so far as payments were made.
On November 14, 1890, Mr. Newton Keim addressed a letter, above set out, to James O'Reilly, in which he speaks of the delay in bringing on the trial of the ejectments, and the feeble health of Mr. Voorhees as a cause for the delay, and offers to contribute towards the expense of additional counsel. No reply was made to his letter. On November 30, 1891, Mr. S. H. Grey, apparently as the result of an interview with Mr. Voorhees, addressed Mr. Voorhees a letter as follows: "My Dear Sir: Mr. Keim has furnished me copies of his agreements for the purchase of O'Reilly lands, part of which are in dispute in Lindley v. O'Reilly, now pending. I will furnish you copy of them, if you wish. The O'Reillys do not dispute Mr. Keim's rights as an equitable owner. Will you not kindly urge the trial of the suits which are necessary to vindicate O'Reilly's title, as by his agreement of Oct., 1881, Mr. O'Reilly agreed to do? Truly, S. H. Grey." That letter Mr. Voorhees inclosed at once in a letter to Mr. James O'Reilly, and stated that he had asked Mr. Grey for copies of the agreements. These were shortly afterwards furnished by Mr. Grey to Mr. Voorhees, and by him forwarded to Mr. O'Reilly. The ejectments were noticed for trial at April term, 1892, commencing on the 12th of that month. On April 1st, Mr. Newton Keim wrote Mr. James O'Reilly, offering the assistance of Mr. Grey as counsel at the approaching trial, but received no reply thereto. The suit against West and Rotheram was brought to trial, and a verdict rendered for the plaintiff on April 12, 1892. Judgment, as already stated, was afterwards entered on this verdict, and by it the title of the O'Reillys was perfected in lots Nos. 4 and 5, composing the Rotheram strip, 100 feet in width, lying east-wardly and next to the strip of 50 feet previously owned by complainant, facing on New York avenue. The strip of 50 feet (lot No. 6) next on the east of the Rotheram strip was involved in the Lindley ejectment, which was not tried. On the 15th of April, 1892, Catharine O'Reilly, as executrix of her husband's will, executed a deed of conveyance, dated April 14th, conveying the Lindley lot, to Daniel Lindley, in consideration of $10,000, which deed was duly recorded on April 16, 1892. The consideration for that deed was actually paid on or about April 16th. The proofs show that the lot so conveyed was worth at least $20,000, and probably $25,000. The deed, on its face, states that it was given in compromise of the ejectment suit, and such is the proof. The question is whether Mr. Lindley had such notice of Mr. Keim's claim as to prevent his occupying the position of a bona fide purchaser for value.
The evidence is as follows: Mr. Lindley was a resident, for the summer season at least, of Atlantic City, and was well acquainted with complainant. He had the undisputed title to the Pacific avenue front of the strip (lot No. 6) In question, and was
In possession of the whole. The portion of these strips towards the ocean was low, and in many places but little above the level of high water, and required filling. The board of health, in the summer of 1891, was requiring the owners to fill it in, and was proceeding against Mr. Keim, as such owner, so he swears, and he is not contradicted. He did some filling on the O'Reilly strips, but was unwilling to proceed further until he knew his rights. He swears that on one occasion, within a year before April, 1892, he had a conversation with Mr. Lindley about this matter of filling, while both were on the ground, and he then stated to Lindley that he had a contract from the O'Reillys for all the land they owned between New York and Tennessee avenues. If this evidence is reliable, then Lindley did undoubtedly have notice. The information 'was upon a subject in which he was deeply interested, and a remark of that kind would naturally attract his attention. Lindley does not deny that there was such a conversation, but swears that it did not refer to the disputed land, and that Mr. Keim's claim as purchaser was not mentioned. Mr. Lindley had a son-in-law, Alfred Adams, Jr., a defendant herein, who also lived in Atlantic City, was on intimate business terms with his father-in-law, and assisted him in raising the $10,000 which he paid to the O'Reillys. The evidence is overwhelming that Adams had notice of Keim's claim. It is proven, not only by the evidence of the complainant, but also by Mr. Albertson, a partner of Senator Gardner, and finally by Mr. Barstow, a director in the bank from which the money was borrowed with which to pay the O'Reillys. Mr. Adams applied to the cashier for a loan of $10,000 for Mr. Lindley, but declined to tell that officer for what purpose the money was needed. Upon being informed that it would be necessary to disclose such purpose to some officer of the bank, he went to Mr. Barstow, one of the directors. That gentleman was sworn, and gave his evidence in a peculiar manner, and with great caution. I am entirely satisfied of its truthfulness. He says that Mr. Adams, in reply to his inquiry, stated that the money was to be used by Mr. Lindley to purchase from the O'Reillys the land in dispute between them. Mr. Barstow then asked him if he knew that Mr. Keim claimed to have a contract from the O'Reillys covering that piece, to which Mr. Adams made no direct reply, one way or the other. Adams denies all this, and the other evidence referred to. But I am unable to place any confidence in such denial, and am led to the conclusion, not only that he had, in common with many other persons in Atlantic City, previous notice of Mr. Keim's claim, but that his attention was particularly called to it by Mr. Barstow on the very day—April 15, 1892— that the loan was secured. I do not understand him to swear that he concealed from his father-in-law any knowledge which he had on the subject it is highly improbable that he would do so. Further: James A. Griffith, a defendant herein in suit No. 2, was in possession, under the Rotherams, of the shore end of lots Nos. 4 and 5; and was anxious to purchase the whole land here in controversy, in order to preserve the expense of improvements which he had put upon it, and attempted to buy up all the different claims upon the land. For that purpose, in the year 1891, he opened negotiations with Gardner, representing the O'Reillys, and with the complainant in person, and must also have talked with Lindley, who was in possession of lot No. 6, and with his son-in-law Adams, who was in possession, under lease from the O'Reillys, of the shore front of lot No. 7. Griffith failed to purchase because he found the aggregate sum he would be obliged to pay to all claimants would be too great. Here was ample opportunity for Lindley to learn of Keim's claim. The fact is that the Keim claim was very generally known among business men in Atlantic City, and it is difficult to understand how either Lindley or Adams could be ignorant of it. The verdict in the West-Rotheram suit was rendered, as already stated, on Tuesday, April 12th. The Lindley case, according to his counsel, Mr. Harned, was not moved, on account of Lindley's illness. Mr. Harned himself, after conference with Mr. Voorhees, counsel for the O'Reillys, prepared the deed from Mrs. O'Reilly to Lindley on Thursday, the 14th, submitted it to Mr. Voorhees the same day, and got his approval of it, took it with a note from Mr. Voorhees, to Reading, Pa., on Friday the 15th, and there procured its execution and acknowledgment by Mrs. O'Reilly (the certificate incorrectly stated its acknowledgment in Camden), and brought it back to Camden. The loan from the bank in Atlantic City was obtained by Lindley on the same day. He brought the money to Camden on that day or the next (he says Saturday, the 10th), handed it to Mr. Harned, who gave his check, dated April 16th, to Mr. Voorhees, for the amount, $10,000. Mr. Harned is mistaken in stating that he went to Reading and got the deed executed after Lindley brought him the money.
Now, in this one transaction, Mr. Harned was brought in contact several times with Mr. Voorhees, who knew of the Keim claim, and also several times with James O'Reilly, who also knew of it. Mr. Voorhees was not called as a witness; and I think there is some force in the argument of counsel of complainant that he is not the sort of man who would be likely to be a party to such a transaction without mentioning the Keim claim. Then, the hasty manner in which the affair was carried through is not without significance. There was no preliminary agreement James O'Reilly and Mr. Voorhees were at May's Landing on April 12th. Up to that time no agreement in the Lindleymatter had been arrived at, and the sum to be paid had not been agreed upon until after that date, although negotiations had been on foot for some time. Mr. Harned, however, prepared the deed on the 14th, procured its execution on the 15th, and the O'Reillys trusted him with it, without payment of the purchase money, upon his promise to pay it to Mr. Voorhees. Then, we have the fact that, although all three of the executors were present at Reading, the deed was prepared by Mr. Harned, after conference with Mr. Voorhees, to be executed by Mrs. O'Reilly alone, and a deed of ratification to be executed by the other executors, and its execution by them was procured at the same time as that of Mrs. O'Reilly's deed. Now, the proofs show that all the deeds of conveyance—over a dozen in number —made after Patrick O'Reilly's death, up to that date, had been made and executed by all the executors as grantors. The question then arises, why was this one to Mr. Lindley executed by Mrs. O'Reilly alone, and a separate deed of confirmation by the other two executors used, which deed of confirmation was not recorded until after the complainant's bill had been filed? It is suggested by complainant's counsel, and I think with much force, that this plan was adopted because it would be much easier for Mr. Keim to prove authority from Francis and James to Gardner to make these contracts than to prove it from Mrs. O'Reilly. Grant the correctness of Mr. Voorhees' opinion that Mrs. O'Reilly, having alone taken out letters testamentary in New Jersey, was authorized to convey without her co-executors joining in the conveyance, what objection was there to their joining in such conveyance, and why resort to the awkward and cumbrous plan of having a separate, co-temporaneous deed of confirmation executed by them? It was certainly a suspicious circumstance, which I think could not have escaped the attention of Mr. Harned, who was acting as the solicitor and counsel of Mr. Lindley in this matter, so that notice to him was notice to Mr. Lindley. Taking all the circumstances,—Mr. Lindley's residence at Atlantic City, the notoriety among business men of Mr. Keim's claim, the direct evidence of actual notice of it to him, clear proof of knowledge of it on the part of his son-in-law and assistant, Adams, and the circumstances attending the conveyance,—I am convinced that Mr. Lindley had such notice of complainant's claim as to put him on inquiry, and charge him with notice.
This renders it unnecessary to consider another point taken by complainant's counsel, viz. that the deed from Mrs. O'Reilly alone was not sufficient to pass the legal title, and hence that no more than an equitable titles resulted, which, being subsequent in point of time to complainant's equitable title, must yield to it. Martin v. Bowen. 51 N. J. Eq. 452, 26 Atl. 823. In answer to this, however, counsel for Lindley produce the deed of confirmation executed by the other two executors, dated and acknowledged April 15, 1892, —the day of the execution of Mrs. O'Reilly's deed,—by which they ratify and confirm her deed. This deed of ratification and confirmation contains no words of grant, and it is at least doubtful whether it can be held to pass the legal title.
The next complication arises out of a contract for the sale to Alfred Adams, Jr., of the 50-foot strip (lot No. 7) adjoining on the east the Lindley strip, and extending from Pacific avenue to the ocean. A Mrs. Williamson was in possession of the part of this strip immediately fronting on Pacific avenue, and Adams was in possession of the end fronting on the ocean, as tenant of the O'Reillys. The part in the possession of Mrs. Williamson is the subject of an action of ejectment brought by Mrs. O'Reilly against Mrs. Williamson on the 13th of April, 1892. On the l5th of April, 1892, Mrs. O'Reilly, on the application of Mr. Harned, addressed a letter to Adams, offering him this strip at the price of $25,000; and, on the 18th of April, Adams mailed at Atlantic City a letter dated April 15th, drafted by Mr. Harned, addressed to her at Reading, accepting her offer. These letters were duly recorded as a contract for sale of land on April 23, 1892, upon the certificate of acknowledgment of Mr. Hamed that the O'Reilly letter was acknowledged before him on the 15th, and the Adams letter on the 22d, of April. Tills agreement was carried out by a conveyance from Mrs. O'Reilly, as executrix, to Adams, dated June 1, 1892, acknowledged June 13, and recorded June 21, 1892. No part of the purchase money was paid. Adams executed to Mrs. O'Reilly a mortgage dated June 1, 1892, to secure $25,000, on August 1, 1893, with interest. The mortgage was accepted, instead of cash, for the purpose of indemnifying Adams against complainant's claim. Francis P. and James A. O'Reilly, as executors, executed a deed of confirmation of this conveyance in the same form as that which they executed in confirmation of Lindley's conveyance. In the meantime, on April 28th, notices of complainant's claim were served on Lindley and on Adams, and on the 30th of April the first bill herein was filed by complainant, asking specific performance of both contracts; making Lindley and Adams parties on account of their claim (one by deed and the other by contract) to a part of the premises, and praying that the deed and contract might be declared void. Process was duly issued upon this bill, and served upon each of these defendants on May 12, 1892. Notice of lis pendens under this bill was filed April 30, 1892. The devisees of O'Reilly, including Francis and James, answered this bill jointly, August 5, 1892. Mrs. O'Reilly answered separately on the same day. Messrs. Lindley and Adams answered jointly on August 23, 1892. On September 19, 1892, complainant filed a supplemental bill setting out the proceedings in the suitto that date, and adding, by way of supplement,, the deed which had been executed by Mrs. O'Reilly to Adams, and the mortgage given back by him for the consideration money, and the two deeds of confirmation, which had not been put upon record at the time of filing the bill of April 30th. This supplemental bill was duly answered by all the defendants, and the issues thus raised constitute the first cause under consideration. It is hardly necessary to say that in no aspect of the case can Adams have any standing, as against complainant.
The second suit arose as follows: On the 21st of April, 1892, Mrs. O'Reilly, as executrix, entered into a written contract with James A. Griffith to convey to him the two strips, each 50 feet in width (lots Nos. 4 and 5), comprised in the West and Rotheram suit, in consideration of $65,000, deed to be delivered and money paid, except $1,000 paid down, on May 21, 1892. This agreement was recorded May 6, 1892. I stop here to say that Griffith was in possession of the shore front of this strip,—had a merry-go-round plant upon it. Complainant filed his second bill May 26, 1892, setting up the same equities as in his first bill; omitting mention of the Lindley and Adams sale, but setting forth the Griffith contract; charging him with notice; praying that the contract might be declared void, and that an injunction might issue against the carrying of it out by conveyance, or the assignment of it by Griffith. I stop here to say that overwhelming proof was given at the hearing, which has already been alluded to, that Griffith did have full notice of complainant's claim long before entering into this contract. A notice of lis pendens, founded on this bill, and setting forth the claim against Griffith, and his contract, was also filed May 28, 1892. Injunction in accordance with the prayer of this bill was duly served within the state on Griffith, on June 7, 1892. Process to answer was duly issued and served on him May 31, 1892. Griffith did not answer. An answer was filed August 5th by the heirs and devisees of O'Reilly, and a separate answer by Mrs. O'Reilly, which were echoes of the answers filed on the same day to the bill against Lindley and Adams. On the 13th of June, 1892, Mrs. O'Reilly executed, as executrix of her husband, a deed, dated June 1st, conveying the strip (lots Nos. 4 and 5) contracted to be sold to Griffith, to one Edward H. Hall, of Philadelphia, in consideration of $65,000. On the 14th of June, Hall executed to Mrs. O'Reilly his bond and mortgage to secure $50,000, a part of the consideration money, with interest, "on August 1st, 1893, or as soon thereafter as a good and marketable title is made to the said Edward H. Hall by the said Catharine O'Reilly, executrix, for the land described in the accompanying mortgage," etc.; "the liability of the said Edward H. Hall on this bond being hereby expressly limited to the land conveyed and mortgaged." The same clause was inserted in the mortgage. This mortgage was recorded June 16, 1892, and the deed June 15, 1892. The balance of the purchase money was paid in cash, except $1,000 previously paid by Griffith. In fact, this conveyance was made in fulfillment of the Griffith contract. A title guaranty company, of Philadelphia, warranted the title to Hall, upon being indemnified by Mrs. O'Reilly. On the 10th of August, 1892, Hall executed and acknowledged a deed conveying these premises to Joseph Shelton, of New York City, in consideration of $15,000, subject to the mortgage for $50,000 given by Hall to Mrs. O'Reilly. This deed was recorded August 11, 1892. Both Hall and Shelton are employes of R. D. Wood & Co., merchants with offices in New York and Philadelphia. The transfer of title from Mrs. O'Reilly to Hall was made at the request of Mr. Griffith, and under the supervision of his counsel, Mr. Harned. On the 12th of September, 1892, complainant filed a supplement to his bill against Griffith, setting out the conveyance from Mrs. O'Reilly to Hall, and that from Hall to Shelton, and praying that both be declared void and set aside, as against him, and praying an injunction restraining further transfer of the title, and also restraining the clerk of Atlantic county from receiving further conveyances of these premises. Due notice of this suit, and its object, was filed in the county clerk's office September 23, 1892. About the time this bill was filed, Shelton conveyed the premises to Walter A. Wood, of the firm of R. D. Wood & Co., who at once conveyed them to one Bacharach, all residents of Philadelphia. Bacharach was a large creditor of Griffith, secured by a chattel mortgage upon his merry-go-round plant upon the premises, which Griffith was running. No answers were filed by either Griffith, Hall, or Shelton to the bill, and decree pro confesso went against them. Wood and Bacharach were not brought in. No attempt was made to sustain these conveyances, as against complainant. Griffith paid his $1,000, with full notice of complainant's claim; and before Hall and Wood paid anything the bill of April 30th was filed, and notice of it filed in the proper office; also, that Of May 26th, which expressly prayed that Griffith's contract might be declared void, and notice of that was also duly filed May 28, 1892. The result is that complainant is entitled to relief against all the defendants, and he asks for such title as he can get against the grantees of the O'Reillys, without any guaranty by them, and is not content to receive the consideration already received, and the securities given for the balance. It remains to consider the terms upon which he should have this relief; and in view of the great rise in value of the property, and notwithstanding defendants are themselves responsible for at least half in time of the delay which has occurred in perfecting the title, 1propose to make them so stringent, as against the complainant, that the defendants shall be quite as well off as if the contracts had been carried out immediately. I think an account should be taken between the parties, in which the complainant should be charged with the purchase price, $12,500, with interest on $2,500, less $25, from the date of the first contract, and on $10,000, less $500, from the date of the second contract. He should also be charged with all the taxes and assessments paid upon the property, and the actual cost of any filling put upon it by the O'Reillys. He should also be charged with the actual and necessary expenses attending the several actions of ejectment, less the sum of $500, which I adopt arbitrarily as the amount which was probably in the minds of the parties, as the cost of the suits, at the time the contracts were entered into. The complainant must be credited with all rents and income received by the O'Reillys, and they must consent to the use of Mrs. O'Reilly's name, or such substitution of her heirs or devisees in the various actions of ejectment which are still pending as may be necessary to revive the suits; said actions to be at the control of the complainant, and to be carried on and conducted for his benefit; also, actions for mesne profits, in case of final success therein, the complainant to indemnify the parties against loss or damage by reason of the use of their names as plaintiffs. I will hear counsel as to whether or not relief should be given indirectly in favor of Lindley, and against the O'Reillys, for the $10,000 paid by him; if so, what form it should assume.