Brinton v. Scull

• Decision Date: 04 November 1896
• Citation: 55 N.J.E. 747,35 A. 843
• Parties: BRINTON v. SCULL et al.
• Court: New Jersey Court of Chancery

35 A. 843

55 N.J.E. 747

BRINTON

v. SCULL et al.

Court of Chancery of New Jersey.

Nov. 4, 1896.

Bill by J. Percy Brinton against Enoch B. Scull and others for specific performance of a contract to convey land. Decree advised in favor of complainant.

The bill in this case is filed to compel the specific performance of an agreement claimed to have been made by the defendant Scull, through his agents, Porter & Crowley, with the complainant, on the 27th of September, 1895, for the sale of a tract of land situate on the east side of Chelsea avenue, and designated as "No. 11, in block 12, of the Chelsea Beach Company," as shown on that company's plan on file in the Atlantic county clerk's office. The complainant alleges: That Scull had employed Messrs. Porter & Crowley to act as his agents for the sale of this lot. That he fixed the price at $2,000, prescribed the terms of payment, and directed them to make the sale. That on the 27th day of September, 1895, the complainant agreed with Scull, through Porter & Crowley, acting as his agents, for the purchase of this lot, by a contract in the form of a receipt, which is marked "Exhibit C 1," and is in words and figures as follows: "Atlantic City, N. J., Sept. 27th/95. Received of J. Percey Brinton the sum of twenty-five Dollars ($25.00) on act of the purchase price of two thousand Dollars ($2,000.00) on Lot no Eleven (11) in section No twelve (12) as per plan of Chelsea in Atlantic City said Lot situate on the East side Chelsea Ave. Beginning at a point two hundred and seventy-five feet south of Pacific ave the size of the aforesaid Lot being (50x125) the property of E. B. Scull which Lot is this day sold by us as Agents for the said E. B. Scull to the said J. Percey Brinton for the said Price of (2,000) two thousand Dollars to be paid all Cash if desired or one-half to remain on purchase money mortgage settlement to take place within (20) days and apportionment to day of settlement. Porter & Crowley, Agts. Witness: H. S. Scull." Indorsed on the contract is the following certificate: "Reed. Oct. 1st., A. D. 1895, and recorded in the clerk's office of Atlantic county, at Mays Landing, in Agreement Book No. 3 of the said county, on page 211. Lewis Evans, Clerk." On the same day that he got this agreement, the complainant paid Porter & Crowley $25 in cash on account of the purchase money of the lot, and on the next day Porter & Crowley notified Scull of the contract thus made. Shortly after the contract was made, the complainant tendered performance of it to Scull by offering to pay to him the balance of the purchase money, which he refused to accept, stating as his reason that he had advanced the price of the lot prior to the time of the sale by Porter & Crowley to the complainant, but had neglected to notify them of his intention to raise the price. Scull refused to convey to the complainant, but on the 4th of December, 1895, he did convey the lot in question to the defendant E. Bartine Johnson by deed dated November 16, 1895. At the time when this deed was made, Johnson had full knowledge of the outstanding unperformed prior contract to convey to the complainant, and with this knowledge Johnson accepted the deed from Scull to himself. The complainant claims that this conveyance was a subterfuge by which Scull hoped to get the title into the hands of a stranger, and thus defeat the complainant's contract, and he alleges that Johnson is not a bona fide purchaser, etc. The defendants Scull and Johnson both file answers. Scull admits that he owned the land, but denies that he ever in any way appointed Porter & Crowley his agents for the sale of it He denies giving them any authority to make the contract with the complainant; declares that he had no notice of it until a day or two after it had been executed, and that on receiving notice of it he repudiated it, and also the claim of Porter & Crowley of any right to make it as his agents. He admits that Porter & Crowley made known to him the making of the agreement after it had been made, and that the complainant tendered himself ready to pay the balance of the purchase money, and that he refused to take it, and that he stated that he had advanced the price as above narrated. He avers that the conveyance to Johnson was no subterfuge, but a sale in good faith; that he had put the sale of the lot in the hands of I. G. Adams, and also of A. H. Phillips & Co., at the price of $2,000; and he states that all he said to Porter & Crowley touching the matter was in reply to an inquiry of Crowley, to whom he answered that he was the owner of the lot, and the price was $2,000. He says he heard nothing further from Crowley until after the agreement with the complainant was made. In the meanwhile he says he had notified Adams & Co. and Phillips & Co. that he had advanced the price of the lot to $2,500, and immediately upon receiving word that Porter & Crowley had sold the lot for $2,000 he informed them that the price was $2,500; that a few days afterwards the complainant requested him to convey the lot for the $2,000, which he refused to do; and that the sale to the defendant Johnson was made by Adams & Co., who had received $100 on account, and given a receipt therefor, before the complainant knew that Johnson desired to purchase it. The defendant Johnson answers by the same solicitor as the defendant Scull, and claims that he is a bona fide purchaser for value; that he had paid $100 on account, and received an agreement of sale from Adams & Co., as agents for Scull, two or three days before he had any word from Porter & Crowley that they had sold it to the complainant, and that this information was the first knowledge that he had of any transaction between Scull, Porter & Crowley, and the complainant.

J. H. Brinton and L. M. Garrison, for complainant.

C. L. Cole and Joseph Thompson, for defendants.

GREY, V. C. (after stating the facts). In so far as the bill charges the conveyance to Johnson to have been a subterfuge and a fraud, there has been no proof submitted upon the part of the complainant which tends to establish this charge. There seems to be no dispute that the complainant entered into the bargain for the purchase of the lot with Porter & Crowley, believing them to be the agents of the defendant Scull, in good faith, and that he received the above memorandum of the sale, and made a payment on account of the purchase money, and tendered to the defendant Scull the residue of it. The form of the agreement is, in substance, the same as a contract made by an agent for sale of lands, of which specific performance was decreed in Reynolds v. O'Neil, 26 N J. Eq. 224. See, also, Lewis v. Reichey, 27 N. J. Eq. 240. The defendant Johnson appears to have made his bargain with Adams & Co. for the purchase of the lot as agents of Scull in ignorance, at the time he made the bargain, of the previous contract made by Porter & Crowley, as agents of Scull, with the complainant. This contract of the defendant Johnson was marked "Exhibit D 1," and is in the words and figures as follows: "November 16th, 1895. Received of E. Bartine Johnson the sum of one hundred dollars to secure and on account of purchase of lot No. 11, block 12, on map of the Chelsea Beach Company, situate on the easterly side of Chelsea avenue, and beginning two hundred and seventy-five feet southerly of Pacific avenue, and extending southerly fifty feet, and of that width extending eastwardly at right angles with Chelsea avenue and parallel with Pacific avenue one hundred and twenty-five feet. Price of said lot two thousand five hundred dollars; four hundred dollars to be paid within thirty days from the date of this agreement, and the balance, two thousand dollars, to be secured by a purchase-money mortgage payable at any time within three years. Papers to be dated November 16th, 1895. Taxes to be prorated. E. B. Scull." On this contract Johnson had actually paid $100 on account before he heard of the complainant's contract; but before he paid any further purchase money, or took his deed, he was fully notified of the previous contract to convey the lot to the complainant, and of the complainant's assertion of his claim to the lot under that contract, and Johnson thereafter proceeded with the performance of his contract with actual notice of the complainant's prior equity.

The incidental facts which lead to the foregoing conclusions are not disputed, and appear in the proofs offered by both parties. The essential difference between the parties lies in the broad denial of the defendant Scull, the owner of the lot, that he ever in any way authorized Porter & Crowley to act as his agents for the sale of the lot in question. This denial is explicit and unqualified as set out in the answer, and the defendant Scull declares that he repudiated the contract made by Porter & Crowley with the complainant as soon as he heard of it An examination of the testimony shows that the only witnesses who testified to this point are the real-estate agents, Porter & Crowley, and the defendant Scull. Mr. Scull's letters, however, to Messrs. Porter & Crowley and to the complainant, immediately after the happening of these transactions, throw great light upon this disputed question. Crowley testifies that about April 11, 1895, he called upon Mr. Scull about the sale of some lots of land owned by him, including the lot in question as one, and that Scull, at his invitation, named the price at which he would sell...