Bradley v. Heyward

• Decision Date: 13 July 1908
• Citation: 164 F. 107
• Parties: BRADLEY et al. v. HEYWARD et al.
• Court: U.S. Court of Appeals — Fourth Circuit

164 F. 107

BRADLEY et al. v. HEYWARD et al.

United States Circuit Court, D. South Carolina.

July 13, 1908

Von Kolnitz & Waring, for complainants.

Julius H. Heyward, Joseph W. Barnwell, and Nathaniel B. Barnwell for defendants.

BRAWLEY District Judge.

This is a bill for specific performance of a contract for the sale of phosphate rock and phosphate deposit on the Middleton lands on Ashley river.

The plaintiffs, citizens of Massachusetts, are the owners of a large body of phosphate land in this state lying near the Middleton place. Being desirous of extending their holdings they employed George F. Von Kolnitz, Esq., a lawyer of Charleston, in the spring of 1905, to obtain options on other lands, and it appears from the testimony that he succeeded in obtaining about 30 options. With that purpose he made a visit to Greenville in April and had an interview with Julius H Heyward, Esq., the husband of the defendant, and commenced negotiations with him. Mr. Heyward informed him that nothing could be done without consultation with his wife, then on the Middleton place, and, Mr. Von Kolnitz offering to pay his expenses, Mr. Heyward came down, and, after conference with the defendant, agreed with the plaintiffs' attorney upon the terms, and prepared the agreement which gives rise to this controversy, Mr. Von Kolnitz adding the stipulation as to right of way, and the agreement was executed April 20 1905. The agreement provides:

'(1) That the said Elizabeth M. Heyward, for and in consideration of the sum of $5.00 to her in hand paid, hereby grants and conveys to the said George F. Von Kolnitz, Jr., attorney, for the period of four months from this date, the right and option to purchase all phosphate rock and phosphate deposit contained on or in all that portion of the Middleton lands on Ashley river,' etc., containing about 5,507 acres more or less.

'(2) That the said George F. Von Kolnitz., Jr., attorney, hereby agrees to pay for said phosphate rock and phosphate deposits (if after examination of said land he shall elect to purchase the same) the sum of $20,000, payable in cash on the 20th day of August, A.D. 1905, on which date this option shall expire.

'(3) That the said George F. Von Kolnitz, Jr., attorney, his agents and employes, are hereby granted all necessary rights of access to and entry upon said land during the above-limited period for the purpose of examining the same by soundings, excavations, etc., and all necessary conveyances are in due course to be executed and delivered for the purpose of completing said sale and transfer, which conveyances shall also include the right to a right of way to the Ashley river over the other lands of said Elizabeth M. Heyward, and a site upon said river for a washer, provided, however, that neither said right of way nor site shall in any way interfere with the rights granted heretofore to the United Timber Company, as shown by a lease now on record in the office of the registry of mesne conveyance, Dorchester county.'

In August, 1905, Mrs. Heyward addressed a letter to George F. Von Kolnitz, attorney, saying:

'The limit of the option heretofore granted you by me for the purchase of the phosphates on the Middleton lands and rights set forth therein is hereby extended to September 1, 1905.'

On the 30th of August Mr. Von Kolnitz paid to the defendant the sum of $20,000, and shortly thereafter prepared a deed conveying to plaintiffs all the phosphate rock and phosphatic deposits contained in the land described, and providing a right to construct and operate tramways or railways over and upon the lands for the mining or removal of the rock, and the right to occupy a site on the Ashley river for a washer, which Mr. Heyward, who throughout all the negotiations had represented the defendant, with her written authority, objected to, and, after some fruitless negotiations and correspondence, the defendant referred Mr. Von Kolnitz to her attorney, H. A. M. Smith, Esq., who, after some negotiations, prepared an instrument in writing to carry into effect the agreement of April 20, 1905, which was acceptable to Mr. Von Kolnitz, but which Mrs. Heyward refused to execute.

Being unable to reach any agreement, this bill has been filed.

In the answer and in the argument numerous grounds are set up why the agreement should not be specifically enforced. The first is, as set forth in the answer, that the terms are 'too vague and uncertain to be capable of reasonable construction and enforcement, inasmuch as no place is fixed for the site of the washer therein referred to, and no limits or boundaries are fixed for the right of way mentioned in said option, nor is the compensation fixed for the use of either.'

It appears from the testimony that all the negotiations between the parties were conducted between Mr. Von Kolnitz, on the one side, and Mr. Heyward, on the other. Both of them are lawyers of mature age and considerable experience. The agreement was prepared by Mr. Heyward. It involves a considerable sum of money, and was prepared after full deliberation, and it is fair to assume that when he prepared a paper of this character he intended, if the other party performed its obligation, to give an enforceable contract, and not a mere option on a lawsuit, wherein the measure of damage for breach of contract would be so uncertain as to have no calculable value. I cannot agree to the contention that the terms of this contract are 'too vague and uncertain to be capable of reasonable construction and enforcement. ' The main features of the agreement are perfectly clear, and that is that the plaintiff, if after examination of the land he shall elect to do so, shall have the right to purchase all phosphate rock and phosphate deposit contained on or in all of the Middleton lands on Ashley river described in the plat of Simons & Mayrant, containing about 5,507 acres. It is further stipulated that all necessary conveyances are in due course to be executed and delivered for the purpose of completing said sale and transfer. It is true that the location and dimensions of the right of way are not specifically designated, but it seems to me that the maxim 'Id certum est quod certum reddi potest' applies. The testimony is that a right of way for the removal by rail or tram of phosphate rock when mined, and a washer for the purpose of cleaning it, are necessary for the reasonable use of the thing agreed to be sold, and the agreement stipulates specifically for such right of way and a site for a washer. In the nature of the case, the precise location of this right of way and washer could not be determined in advance, because it was uncertain where the phosphate rock would be found. In the timber lease referred to there was provision for a right of way not exceeding 66 feet in width, and the location was fixed because the site of the timber was known.

In this case it seems to me that there will be little practical difficulty in defining such location of right of way and site for washer as would be consistent with the proper use and enjoyment of the main thing granted-- that is, the removal of the phosphate rock in the land-- and, of course, with due regard to the rights of Mrs. Heyward.

The next ground stated as reason for nonperformance is that of mistake. Mr. Heyward testifies that when Mr. Von Kolnitz approached him on the subject he informed him that he knew that there was a body of phosphate deposit upon a certain tract of the Middleton land, but it was a low-grade rock and had been worked over by several parties, and that in drawing the agreement he had in mind this tract only. The testimony is that during the lifetime of the father of the defendant several parties successively had mined phosphate on this land, one after the other abandoning operations, and that it was supposed that the phosphate had been exhausted, and each succeeding party finding new deposits, but for a number of years there had been no mining upon the lands. Mr. Heyward's home is in Greenville; but his wife, the defendant, usually spends the winter and spring at the Middleton place, and Mr. Heyward is frequently there. There is no room to doubt that neither Mr. Heyward nor Mr. Von Kolnitz, when the agreement of April 20, 1905, was entered into, had any knowledge of the extent of the phosphate deposit upon these lands; nor is there any ground to believe from the testimony that the plaintiffs had any actual knowledge, although from their experience and the nature of their business they would presumably be more capable of forming a correct opinion on this subject than Mr. Heyward would be. The nature of this phosphatic deposit in the low country of South Carolina is peculiar, and has given rise to much curious speculation. It is found sometimes in pockets, and sometimes in strata, of greater or less thickness, lying at greater or less depth, in certain territory, but does not appear to be a continuous strata.

A plat was exhibited at the hearing, prepared by Simons & Mayrant from data furnished by M. E. Hertz, under whose directions the investigation was made, from which it appears that: Upon the whole tract of over 5,500 acres rock was found at 982 stations on about 560 acres; 71 pits were opened, and the rock was found at an average depth of a little over 8 feet the average thickness of the strata being about 8 1/2 inches. The claim now made that it was the intention of the defendant to sell only that portion of the phosphate rock lying within a tract of about 100 acres, which had already been partially mined, is utterly inconsistent with the agreement whereby is given in plain words the right to purchase 'all phosphate rock and phosphate deposit contained on or in all that portion of the Middleton lands on Ashley...