Harrington v. Heder, 33.

• Decision Date: 01 February 1932
• Docket Number: No. 33.,33.
• Citation: 158 A. 496
• Parties: HARRINGTON v. HEDER.
• Court: New Jersey Supreme Court

158 A. 496

HARRINGTON

v. HEDER.

No. 33.

Court of Errors and Appeals of New Jersey.

Feb. 1, 1932.

Appeal from Court of Chancery.

Suit by John J. Harrington against Carl E. Heder, in which defendant filed a counterclaim. From the decree, defendant appeals.

Affirmed.

Seufert & Elmore, of Englewood, for appellant.

Lum, Tamblyn & Colyer, of Newark, for appellee.

WELLS, J.

This is an appeal from a decree of the Court of Chancery directing the specific performance of a contract for the purchase of land on the southwest corner of Broad avenue and Cleveland place in the borough of Palisades Park. The contract was dated May 5, 1928, and entered into between the complainant, a Catholic priest, the owner of the premises in question, and the defendant, who was the mayor of the borough of Palisades Park. By the terms of the contract, the defendant was to pay the sum of $32,000, of which $500 was to be paid down and $500 on June 1, 1928, and $9,000, and a purchase-money mortgage for $22,000 on the delivery of the deed on June 30, 1928.

By the terms of the contract as originally drawn, the premises were to be sold subject to four exceptions. We are concerned with the first and fourth only, which are: (1) Restrictive covenants of record. (4) Subject to zoning ordinances and regulations of the Borough of Palisades and/or the County of Bergen, or any other municipal, city or state regulations affecting said premises, if any.

On May 5, 1928, prior to the execution of the contract, the first exception, namely, "restrictive covenants of record" was stricken out of the contract, and in the place thereof was substituted the following restriction: "Building restrictions and restrictions against noxious trades." It is this contract, containing this exception, that the complainant seeks to have specifically enforced.

To the bill of complaint filed by the complainant, the defendant filed an answer and counterclaim. In the answer, while he apparently admits the execution of a contract between him and the complainant, he denies that the copy annexed to the bill of complaint was a true copy of the agreement executed by him, and in his counterclaim, alleges among other things, that when the agreement was presented to him by the complainant with the first restriction therein, he refused to execute it, and there was substituted the fourth restriction which pertained to zoning ordinances and municipal regulations affecting the premises, and that the agreement was then executed, but that after the execution thereof, the complainant or his agent, without the knowledge of the defendant, fraudulently inserted in handwriting, initialed "J. F. F." the following restriction: "1. Building restrictions and restrictions against noxious trades," and that complainant without knowledge of this addition to the contract, recorded it, and did not discover until after he had made his second payment in June, 1928, that the contract contained said restriction, and that immediately thereupon he informed the defendant of his discovery, and was induced not to rescind the contract by the representation of complainant that the restriction complained about referred only to municipal regulations.

Defendant prayed in his counterclaim that the agreement might be reformed by inserting in the restriction fraudulently added, in front of the words "building" and "restrictions," the word "municipal," so that the restriction would read, "municipal building restrictions and municipal restrictions against noxious trades," or that, in the alternative, the contract be reformed by striking out in its entirety said restriction.

The position of the defendant at the hearing changed considerably from the position set up in his answer and counterclaim. He completely receded from the position that the contract annexed to the bill of complaint was not the contract entered into between the parties.

He admitted that the first exception, to wit, "restrictive covenants of record" was stricken out of the contract, and that the substituted exception for No. 1, to wit, "building restrictions and restrictions against noxious trades" were both in the contract when he signed it; in fact, that the contract offered in evidence was the very contract he signed. His case rested at the conclusion thereof, upon the proof which he offered to the effect that he was induced to sign this agreement by the fraudulent misrepresentation made by the complainant to him to the effect that there were no restrictions against the property in question which would prevent him from building stores or buildings for business purposes upon the entire area of the lot, and that he was led to believe by complainant's explanation, that the exception as to "building restrictions and restrictions against noxious trades" referred only to municipal restrictions and regulations.

On this appeal defendant-appellant raises four issues: (1) There was never a meeting of the minds between the parties to the contract and, therefore, it should not be enforced. (2) The signing of the contract was the result of the fraudulent representation made by the complainant to the defendant. (3) The decree for specific performance places an inequitable burden on the defendant. (4) The contract should not be enforced because it is unconscionable, and the enforcement thereof will be attended with great hardship and manifest injuries to the defendant.

We are confronted at the outset with the extraordinary situation that the defendant has almost completely changed his defense, and in such a way that the facts as now alleged are inconsistent with the facts set up in his answer and counterclaim, and the proofs offered are in direct contradiction thereof. In spite of this, however, the learned Vice Chancellor before whom the case was tried went into the facts as presented and determined the issues raised thereby against the defendant.

It...