Denman v. Mentz

• Decision Date: 17 September 1902
• Parties: DENMAN v. MENTZ et al.
• Court: New Jersey Court of Chancery

52 A. 1117
63 N.J.E. 613

DENMAN
v.
MENTZ et al.

Court of Chancery of New Jersey.

Sept. 17, 1902.

52 A. 1118

Suit by Arthur R. Denman against John M. Mentz and others. Bill dismissed.

James E. Howell, for complainant. Henry Young, for defendants.

Mentz and Mahlman. Chandler W. Riker, for defendant Leschiner.

STEVENS, V. C. This is a bill to rescind, on the ground of fraud, a contract to convey land. It appears that Mentz and Mahlman held title as trustees to the premises known as "855 Broad Street." By a written contract dated July 31, 1901, they agreed to sell the property to one Leschiner for $42,000. On the same day Leschiner, by written contract, agreed to sell to Bippart and Weber. On August 9, 1901, the legal title being still in the trustees, Bippart and Weber, by written contract, agreed for the sum of $50,000 to sell to the complainant. The bill alleges that Leschiner, acting as the agent of Bippart and Weber, made certain representations, which were false in fact, though it does not allege that they were known by Leschiner to be false at the time he made them.

The bill states three such representations: First, that there was erected upon the premises a substantial brick building; second, that the premises were free and clear of all incumbrances except taxes; third, that there was derived from the property an annual rental of $1,800. Mr. Denman, in his evidence, only testifies to two. He says: (1) That Leschiner told him there was "a nice brick house" on the property, or, as he puts it in another part of his evidence, "that the building was a good brick building"; and (2) that Leschiner told him that the property was bringing in $1,800 a year. Mr. Leschiner's testimony is not very different. He says that he told Mr. Denman that there was a good, substantial building on the property, and that it rented for $1,800 a year, and that there was a lease on it for $1,800 a year until May, 1894. There is no proof whatever that the house was not "a nice" or "good brick building." It appears that in 1849 James M. Quimby owned the lot in question and a lot adjoining on the south. On the former stood a one-story structure, and on the latter a three-story dwelling house. This dwelling has stood there for 70 years or more. The one-story structure was raised, probably 30 or 40 years ago, and converted into a three-story building, such as it is today. As I understand the evidence, its lower timbers must have been fitted into the north wall of the adjoining three-story dwelling house while both lots were owned by the same person, and it was conveyed in that condition. When, after the severance of title, it was raised, it must have been by agreement with the then...