Oakey v. Cook

• Decision Date: 31 March 1886
• Citation: 7 A. 495,41 N.J.E. 350
• Parties: OAKEY v. COOK.
• Court: New Jersey Supreme Court

7 A. 495

41 N.J.E. 350

OAKEY

v. COOK.

Court of Errors and Appeals of New Jersey.

March Term, 1886.

Bill for specific performance of a contract for the exchange of lands. Judgment for plaintiff. Defendant appeals.

On appeal from a decree advised by Bird, V. C, who filed the following conclusion:

"This bill is for the specific performance of a contract for the exchange of lands. The complainant, Cook, owned a tract of land in Maryland; the defendant, Oakey, a mill property in New Jersey. In the spring of the year 1883, Oakey, in company with a trusted neighbor, visited Cook, with the view of examining his farm; spent two days with him, visiting the neighborhood, and carefully inspecting the premises. They had a conversation about an exchange. In a few days, Cook visited Oakey in New Jersey; spent two days at least in the vicinity; and on May 7, 1883, they entered into an agreement to exchange. I copy the agreement, namely:

"'Blackwell's Mills, May 7, 1883. "'This article is to certify that John L. Oakey, of the county of Somerset and state of New Jersey, and Edmund B. Cook, of the county of Somerset and state of Maryland, have this day exchanged properties, the exchange to be as follows: The said John L. Oakey to take the property in Maryland, now occupied by Edmund B. Cook, and the said Edmund B. Cook to take the property known as "Blackwell's Mills," now occupied by said John L. Oakey; each party agreeing to furnish good titles satisfactory to both parties; said John L. Oakey agreeing to give said Cook $5,000; also to gather the wheat crop now in the ground, thresh, and deliver one-half to shipping station not further than depot at Westover, Cook furnishing bags for his part, without expense to said Cook for delivering at said station. John L. Oakey is to have the manure on both places; E. B. Cook to have the cord-wood now cut on the premises. JOHN L. OAKEY. [L. S.]

"'ED. B. COOK. [L. S.] Signed, sealed, and delivered in presence of "'Lewis S. Howell.'

"Both premises were heavily mortgaged,—Cook's with $17,000, Oakey's with $8,000. Very soon after the execution of the agreement, as well, perhaps, as before, the disposition of the mortgages became a subject of conversation, although it is not clear with what precise intent; but I think with the design of enabling each party to transfer the liabilities from their respective properties as held before the exchange to the properties as held after the exchange. The fact that these interviews took place, and the uncertainty of them as to intent and the results, should be kept in mind,—not that the agreement was thereby altered or modified, or any new rights created, but that they assist in coming to an understanding of the subsequent action of the parties. As the agreement was signed May 7th, Oakey went to Maryland May 9th, and was there until the 12th,—on the farm with Cook. While he was there, Cook decided that he would make sale of his personal property on May 23d. One of Oakey's sons attended that sale. The next day, or the second day after the sale, Cook left Maryland with his family, and surrendered the possession of the farm to the son of Oakey; came to New Jersey, and by Oakey was put in possession of the mill property May 28, 1883. Thus, within three weeks after the execution of the agreement, the parties thereto had exchanged full and complete possession of the premises referred to in the agreement. Oakey, by his son, commenced at once the cultivation of the farm, and Cook, in person, the running of the mill; a very large amount of work being done thereon by each.

"The crops named in the agreement as being on the farm were all gathered and sold by Oakey. The gross market value was over $4,000. Cook received one-half of the proceeds of the wheat, according to the terms of the agreement. The wheat, less expenses, amounted to $1,663.22; the corn, $730.52; the clover-seed, $434.47; the hay, $342.59; the oats, $50.39; the rye, $80.33; and other products, $100. These values are thus presented to show that Oakey did a large amount of work, and that to have done it he must have been in good faith, and must have intended to proceed with the contract on his part. Cook, on his part, did a large amount of work towards the actual improvement and increase of the value of the mill premises, which would seem to establish equal good faith on his part.

"There being no time named in the contract for the exchange of titles, Cook says it was understood that this was to be effected about June 1st; Oakey says he did not exactly so understand it, but that it was to be done as soon as it could be so arranged. Evidently, then, time was not of the essence of the contract. According to Oakey's understanding, there was to be a mutual accommodation. Cook had a deed prepared and executed by himself and wife for his farm to Oakey before he left Maryland, and upon his arrival in New Jersey he showed it to Oakey.

"In the month of June, Oakey had his mill property surveyed. He then had a deed prepared, but did not have it executed until August 8th. Cook living all the time on the mill property, and Oakey living on the adjoining premises, they saw each other, and met frequently. Oakey says that between June 1st and August 8th, the day when he executed his deed, he had several interviews with Cook about fixing up the titles. He says they saw each other almost every day, and that on one of these occasions he said to Cook: 'I was ready and prepared at any time; and he said he wanted to fix up his property [the mill] a little, and would like to paint it, and wanted a man by the name of Van Duzer to come out and look at it, and he would like to get a loan of about $15,000 on the mill, and said if he could get it at one place it would make less per cent., and gave that as a reason for a little delay; and, before I went down,—I went down on the sixteenth or seventeenth of June,—I went to Maryland, and before that we had a conversation, and he wished me to pay off that—the last mortgage that was down there; and I thought that at that time I would do it, so I went prepared to do it when I went down.' But he (Oakey) did not pay off the last mortgage. He says, 'I took legal advice about it.' Oakey complains that Cook concealed from him the existence of this last mortgage. It is important to remember that he learned of it from him before June 16th, and promised to discharge it. It is urged that in this there was fraud on the part of Cook, but it does not appear that Oakey attempted to get rid of the contract on that account until long afterwards. Evidently, if he intended to rescind, he should have decided to do so immediately. The reasonableness of the law on this subject commends itself to every one. Bigelow, Fraud, 184; Lawrences. Dale, 3 Johns. Ch. 23; S. C. 17 Johns. 437.

"While Oakey was on the farm in Maryland, Cook went there. They met, and Oakey says they had no talk about the mortgages, but did talk about gathering the crops. Oakey says Cook came to him about the first of August, and asked him to pay the interest on one of the incumbrances, and that he told him he 'would never pay another cent until the papers were fixed.' This is the first intimation of any special haste or desire for passing the title that appears in the case. It is doubtful, however, if Mr. Oakey is correct as to the time; for it was some days after the first of August before he had his deed prepared and executed; and there is no evidence of any especial haste or desire upon the part of either party after Oakey had his deed prepared and executed until the twenty-ninth day of August, when Oakey took steps looking to the complete exchange of titles.

"Oakey's son John returned from Maryland on a visit to his father, and on August 29th he and his father called on Cook. In his testimony, John says: 'We asked Mr. Cook if he was ready to fix this matter up. He said he was not. He hadn't seen his man from Philadelphia yet, or the man hadn't seen this place,—I forget which were just his words,—and my father said: "Mr. Cook, it is time this is fixed up; I would like to get this fixed up now as soon as possible; I have the money and papers here with me,"—and he took the money out, and showed it to him.' He showed him $3,000 and the deed. Cook said: 'This is the first time you have been ready, is it not?' Oakey said: 'You know, Mr. Cook, that is not so. I have been ready all summer, at any time.' The son says: 'He [Cook] said his man had been off to a watering place, and he had not been able to see him. I said: "Mr. Cook, if you want to see that man, it is not but a two hours' ride to the watering place to see him. This matter must be fixed up. I want you to understand I am not going to put $700 in in winter grain and truck unless I know who is going to have title." He said he would write. That is all the satisfaction we got. I told him if he would fix this matter up by September, by the time I went home, it would be all right; and, if not, it would be all wrong.'

"Cook says that Oakey and his son were there, and that they said they would like to have it fixed up, but says also that they hadn't their searches, but would have them in a few days, but denies that the matter was at all positive, and says that Oakey never tendered him a deed. He denies that John said it must be fixed before he returned to Maryland.

"After this interview, Cook and Oakey met at the mill again about September 13th. Oakey says he went to Cook, and talked to him about 'fixing up this arrangement of ours. I had been ready, and wanted to know whether he had heard yet from Mr. Van Duzer. He said he hadn't seen him yet. I told him I was tired of this, and then he said something about his sister being there, or something. I didn't get that very clear,—all what he said,—but I was a little vexed, and I said: "Now, you can do what you please, and I will do what I please, after this." He said he had written Mr. Van Duzer, and had received no reply,...