Becker v. Gilbert

• Decision Date: 14 February 1905
• Citation: 60 A. 29
• Parties: BECKER v. GILBERT et al.
• Court: New Jersey Court of Chancery

60 A. 29

BECKER

v. GILBERT et al.

Court of Chancery of New Jersey.

Feb. 14, 1905.

(Syllabus by the Court.)

Bill by Walter Becker against Henry A. Gilbert and S. H. O'Callaghan. Order to show cause why preliminary injunction should not issue. Denied.

The bill of complaint in this case sets forth three several agreements (copies of which are annexed to the bill of complaint), whereby the defendants, the owners of three several tracts of land in Atlantic county, appointed the complainant their sole agent for the sale (within certain territory described in each agreement) of those several tracts in lots, either prescribed, or to suit purchasers. The agreements authorizing the complainant to make these sales were made in the spring of 1904, and the complainant continued to find purchasers until the month of October last. The prices to be paid were fixed in the agreements. Credits were to be allowed; the complainant's compensation was to come out of the collection of the purchase price from the purchasers. When the whole of the complainant's portion of the purchase money owing for any lot had been paid, they were to deliver a deed for that lot to the purchaser. In October, 1904, the complainant and the defendants got into a dispute touching the alleged omission of the complainant to account for and pay over moneys collected on sales of the lands of the defendants. The defendants thereupon notified the complainant that, if he did not arrange and explain his accountings, they would revoke his authority to make further sales, or to collect the purchase price for sales which he had already made. This the defendants appear to have done, by letters addressed to various persons who had become purchasers of parcels of the lands in question. In these letters the defendants directed the purchasers to send the purchase money direct to them, because the complainant no longer represented them. Shortly after this the complainant, on November 1, 1904, filed the bill of complaint in this cause, affixing copies of the agreements to the bill, alleging that the defendants were interfering with the complainant's performance of them, and praying that the defendants might be restrained from sending further notices of the kind mentioned, or any others which may interfere with the complainant's performance of the said contracts, and from appointing other agents to sell the lands in question within the reserved territorial limits mentioned in the agreements, and from transacting any further business in relation thereto, and from collecting the purchase price of any sales of lands reserved by said contracts to be sold by complainant, and from interfering with the complainant in making collections of the purchase money of lands sold by the complainant pursuant to the said contracts, and from attempting to sell any of the lands mentioned in the contracts to any persons within the territorial limits reserved to the complainant, and for further relief. An order to show cause was allowed why an injunction should not issue according to the prayer of the bill of complaint, with an ad interim restraint. On the coming in of the order to show cause, the defendants filed affidavits showing that there was substantial ground of criticism against the complainant in the matter of his failure to account for the purchase price collected by him for the lots which he had sold.

T. B. Hall, for complainant. T. E. French, for defendants.

GREY, V. C. (after stating the facts). The complainant seeks to restrain the defendants from dealing with their own property in any manner hostile to his exercise of the powers which they conferred upon him by the three agreements. In effect, this is a bill to compel the defendants to continue to allow the complainant to act as their sales agent. It has two phases, one to restrain the defendants from interfering with the complainant's further collection of the purchase money of lots sold by him, and the other to prevent the defendants from interfering with his continued sale of the defendants' lots. In substance, it is a bill to compel the defendants specifically to perform those agreements.

It is neither necessary nor wise to discuss on this preliminary hearing the details of matters which must be more fully exhibited when the cause is presented on final hearing. It is enough to inquire whether the complainant has shown with reasonable certainty that he has equities which this court should presently protect, and that, if...