Cohen v. Cohn

• Decision Date: 06 February 1928
• Docket Number: No. 40.,40.
• Citation: 140 A. 319
• Parties: COHEN et al. v. COHN.
• Court: New Jersey Supreme Court

140 A. 319

COHEN et al.

v. COHN.

No. 40.

Court of Errors and Appeals of New Jersey.

Feb. 6, 1928.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Suit by Abraham A. Cohen and another against Benjamin Cohn for specific performance. From a decree of dismissal (138 A. 693), the complainants appeal. Reversed, and record remitted for further proceedings.

Edward F. Merrey, of Paterson, for appellants.

Wood McKee and Morris Metz Cohn, both of Paterson, for respondent.

TRENCHARD, J. [2] The bill in this case was filed to compel the performance of a contract in writing for the sale of a piece of real estate in Paterson; the complainants being the intending vendees and the defendant the vendor. The contract, drawn by the vendor himself, provided for the transfer of the title for the purchase price of $45,000, of which $2,000 was to be paid upon the execution of the agreement, and the remainder in the manner specified therein. The conveyance was to be made on January 2, 1926, but, when the time for performance arrived, the defendant refused to make the deed. His contention Was and is that his refusal was justified because (as he testified) at the time the contract was executed he was having trouble with his children, and that it was then orally agreed between the parties that, in the event that he became reconciled with them before the time for performance arrived, he was not to convey the property to the complainants, but he was to pay them $500 as liquidated damages for failure to perform, and that such reconciliation actually took place before the time for performance arrived. The testimony supporting this contention on the part of the defendant was objected to, but was admitted, and the Vice Chancellor considered that the evidence justified him in refusing to decree specific performance. Accordingly he advised a decree dismissing the bill.

The theory upon which that conclusion was based was that it was open to the defendant to prove by oral testimony that the agreement was not to become effective, unless a reconciliation between the defendant and his children had not taken place before the time fixed for the delivery of the deed, and that the proofs showed that this was the arrangement between the parties.

It seems to us that the learned Vice Chancellor misconceived the situation. The defendant's proof did not show that the agreement was not to have life unless the quarrel between the defendant and his children continued to exist at the time of the performance of the contract. On the contrary, the proofs conclusively showed that the contract was a valid and existing one. The contract was actually executed and delivered; it was partly performed by the payment of $2,000 on account of the purchase money and the acceptance and retention of that payment. It contained a provision that, in case of default in the performance of it by the defendant, he should pay the complainants $500 as liquidated damages, and the defendant at the trial in effect admitted that the contract...