Pope v. Hoopes

• Decision Date: 28 November 1898
• Docket Number: 2.
• Citation: 90 F. 451
• Parties: POPE et al. v. HOOPES et al.
• Court: U.S. Court of Appeals — Third Circuit

90 F. 451

POPE et al. v. HOOPES et al.

No. 2.

United States Court of Appeals, Third Circuit.

November 28, 1898

'In October, 1894, Elmer E. Pope and Calvin N. Dotson, the complainants, entered into an agreement in writing with the defendants, in and by which they leased from the defendants a certain piece of ground in Atlantic City, N.J., for the period of two years, at a rental of $500 for the first year and $600 for the second year, which in the agreement was described as lying on the northerly side of the board walk and westerly of Connecticut avenue, and had a frontage of 50 feet on the board walk and of 340 feet on Connecticut avenue. The agreement also provided that the parties of the first part thereto (the defendants herein) would sell to the complainants herein, the parties of the second part, the following described lots of land, situate in said Atlantic City, bounded and described as follows: 'Beginning at a point in the westerly line of Connecticut avenue five hundred feet south to the southerly line of Connecticut avenue, and running thence, first, westerly and parallel with Oriental avenue, fifty feet; thence, second, southerly, at right angles to Oriental avenue, between parallel lines, of the width of fifty feet, with the westerly line of Connecticut avenue, for the easterly boundary of the same, to the exterior line of the riparian commissioners as established in the Atlantic Ocean,-- at the expiration of one year from the date thereof, for the sum of fifteen thousand dollars provided the parties of the first part had not sold said property before that time.' It also provided that the parties of the second part might purchase 50 feet on the rear or northerly side of the above-described tract fronting on Connecticut avenue, with a depth of 175 feet, at any time during said year, for the sum of $3,500, provided said lot was not previously sold to other parties. Under this agreement the complainants entered into the possession of the leased premises, and erected thereon a more or less substantial building for exhibition purposes, at a cost of several thousand dollars. On the 6th of September, 1895 the complainants notified the defendants that they would be prepared to accept deeds for the two tracts mentioned in the agreement, and pay the cash price for the same. It was soon discovered that there was a difference between the parties as to the quantity of land to be sold under the contract, the complainants herein insisting that the first tract was to be identical in its location and dimensions with that included within the lease, while the defendants contended that it comprised only that particularly described in the agreement and which on the line of Connecticut avenue, measuring northerly from the board walk, fell short of that described in the lease by upwards of 100 feet. The location of the second tract on which complainants had an option was consequently disputed, inasmuch as it adjoined the first tract on its northerly side. On the 16th of September, 1895 and within the year after the date of the agreement, the complainants herein tendered to the defendants the sum of $18,500, and demanded, for the sum of $15,000, a deed for a lot having a frontage of 50 feet on the board walk, and running northerly 340 feet; and for $3,500 a deed for a lot adjoining the above on the north having a frontage of 50 feet on Connecticut avenue, with a depth of 175 feet. The defendants declined to make deeds for the properties demanded, but offered 'to convey' to complainants 'the property described in said agreement in' their 'covenant to convey.' This offer of the defendants was refused by the complainants, and on the 8th day of October, 1895, they filed their bill of complaint herein, setting out that by a mistake, unintentional, or intentional and fraudulent, the defendants did not truly describe the premises which they by the agreement had taken the option to purchase, and praying that the agreement be reformed so that the description of the lots to be purchased should conform to the ones they had leased, and that a decree be made compelling the defendants to convey the premises accordingly. Testimony was taken from which it appeared that at the time of making the said agreement there were present Elmer E. Pope and Calvin N. Dotson, the complainants, and Allen B. Endicott, William G. Hoopes, and Barclay H. Bullock, the defendants, and a Mr. Rogers, who was then in the employ of Adams & Co., real-estate agents, who were acting for the complainants. Pope and Dotson both testify that the only pieces of ground spoken of at the time of drawing the agreement were the one included in the lease, which was 50 feet front...