John Cunningham Et Ux. v. J. F. Blanchard
| Decision Date | 05 April 1911 |
| Citation | 83 A. 469,85 Vt. 494 |
| Parties | JOHN CUNNINGHAM ET UX. v. J. F. BLANCHARD ET AL |
| Court | Vermont Supreme Court |
Special Term at Brattleboro. November, 1910. Reargued at the May Term, 1911.
APPEAL IN CHANCERY. Heard on the pleadings, master's report, and orator's exceptions thereto, at the March Term, 1910 Orleans County, Waterman, Chancellor. Exceptions overruled and bill dismissed with costs. The orators appealed.
Decree reversed and cause remanded. Let there be a reference to the master to find and report the value of said lots at the time of the commencement of the suit; and on the coming in of his report, let there be a decree that the defendant account to the orators by paying to them their just share of such value, with interest thereon from said time.
Herbert W. Blake for the orators.
E A. Cook and Williams & Dane for the defendants.
Present: ROWELL, C. J., MUNSON, WATSON, HAZELTON and POWERS, JJ.
It is said in the brief for the defendant Blanchard, who alone is defending, and not denied by the orators, that the orators have settled with the defendants Perkins, to one of whom Blanchard sold the homestead, called the "core" of the property in question, and that they are not now parties to the case. We treat that as eliminating the "core," leaving only the matter of the building lots adjoining the "core," as to which the orators seek to make Blanchard account for their interest therein, if that be deemed more equitable than to make him reduce to writing the agreement of the parties found by the master concerning the whole property. But the orators have nothing to gain in this suit by having that agreement reduced to writing, for the Statute of Frauds not being set up as a defence, it is just as enforceable here as though it were in writing, if an accounting can be had, which the defendant says can not be, because he says that whatever rights the orators might have had in respect of the division of the land into lots and the sale of them had they been free from misrepresentation themselves, are rights enforceable at law in an action for their stated share of the "purchase price" of the lots. By the words, "purchase price," as here used, we think is meant the cash value of the lots, as no other purchase price is ascertainable, none of the lots having been sold; but the master finds that at the time of the hearing in July 1909, they were worth in the aggregate so much, which was twenty-five per cent more than they were worth in November, 1907, when the defendant took his deed from the bank.
But as the bill was properly brought for the purpose, in part, of obtaining a specific performance of the contract to the extent of having it reduced to writing as agreed, the case will be retained for all other purposes.
The defendant further says that the orators never had any equitable rights against him, and are entitled to no equitable relief, because he says that it was agreed between them that he should purchase the property of the bank at the amount of the decree, and that the orators should have an opportunity to purchase the "core" for $ 3,000 within a reasonable time; that the land outside the "core" should be divided into lots, and that the orator John and the defendant should use their joint efforts to sell the lots, and that the first money derived therefrom should be used to reimburse the defendant for the amount paid out by him in excess of the $ 3,000 he was to receive for the "core," the amount of which reimbursement was to be $ 900, after which the balance of the money derived from such sales was to be equally divided between the orators and the defendant; that the defendant was ready and willing at all times while he held the title, to convey the "core" to the orators at the agreed price; and that before the defendant conveyed the same to Perkins, a reasonable time for the orators to buy it had elapsed, but that they neglected and refused to exercise their right in that behalf, and had full knowledge of the defendant's conveyance to Perkins and were satisfied therewith. But there is nothing in all this that deprives the orators of their interest in the lots, nor releases the defendant from accounting to them therefor, for the agreement was divisible, the part relating to buying the "core" imposing no obligation upon the orators as it was a mere option to buy that they could exercise or not as they pleased, and was entirely separate and distinct from the part conferring rights upon them in respect of the lots.
The defendant also says that he was neither a necessary nor a proper party to any equitable claim the orators may have had against the defendants Perkins. But those defendants having been settled with and gone out of the case, the orators are now making no claim against them. But if the defendant means an out-and-out misjoinder, it is too late for him to raise that question, for the bill on its face shows the misjoinder, if any there is, and as he neither demurred for that cause nor raised the question in his answer, he must be taken to have waived the objection. Passumpsic Savings Bank v. Buck, 71 Vt. 190.
The defendant further says that the orators are entitled to no equitable relief against him because he says that they themselves are not free from fraud in the transaction. This claim is based on the finding of the master that while the negotiations were going on between him and the orators concerning his buying the property as aforesaid, the orator John represented to him that he had customers to whom he could sell several of the lots, the names of which he gave to the defendant, which representation the defendant relied upon, and which tended to induce him to make the purchase that shortly after the defendant took his deed, he interviewed the persons whose names the said John had given to him, and found that none of them had any notion of buying, and that none of...
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