Strauss v. Rabe

• Decision Date: 16 January 1925
• Citation: 127 A. 188
• Parties: STRAUSS v. RABE et ux.
• Court: New Jersey Court of Chancery

127 A. 188

STRAUSS

v. RABE et ux.

Court of Chancery of New Jersey.

Jan. 16, 1925.

Suit by Jacob Strauss against August R. Rabe and wife. Bill dismissed.

Joseph Ranker, of West Hoboken, for complainant.

Melosh, Morten & Melosh and Louis G. Morten, all of Jersey City, for defendants.

BENTLEY, V. C. Oh June 12, 1924, the parties entered into a written contract for the sale of certain real estate by the defendant to the complainant, under the terms of which title was to pass on August 2d of that year. No appearance was made by the complainant at that time, and subsequently, on August 18th, notice was given to complainant, in writing, by the defendants, through their attorney, fixing September 8th as the time, and the office of said attorney as the place, for closing title, and making time of the essence of the contract. The letter specifically stated that the defendants made time of the essence, and carefully showed that the attorney only obeyed their instructions. On that day the complainant, accompanied by his attorney, repaired to the place designated, but not prepared to accept the defendants' deed, and seeking a postponement until two days later. The bill then alleges that such an extension of time was granted. It is not said by whom the extension was granted, but the defendants do not rely upon this informality, but upon a theory which, if established, will result in a complete determination of the suit. The defendants, considering the contract as terminated upon failure to comply with its terms on September 8th, have refused to recognize any rights claimed therein by the complainant; whereupon this bill was filed, seeking a decree for specific performance.

The defendants have given notice of a motion to strike out the bill, not upon the usual ground that it is inartificially drawn and does not express a cause of action, but because, out of the mouth of the complainant himself, it is made to appear beyond peradventure that there is no basis, in fact, for the bill, and that the complainant cannot produce proofs thereunder, or under an amended bill, that will entitle him to the remedy he seeks. The Chancellor, in Carlisle v. Cooper, 18 N. J. Eq. 241, at page 248, upon a motion to strike out a bill, says:

"I cannot adjudge that under this bill the complainant will not be entitled to relief at the hearing, upon any evidence that he may produce to sustain it. The motion to dismiss must therefore be refused."

From this language it would seem that the converse might be true. In Conover v. Ruckman, 32 N. J. Eq. 685, an application was made to the Chancellor to dismiss a bill. The application was based upon a simple notice, and he decided that there was no practice for such a proceeding in lieu of demurrer at that time, although now, of course, it is permitted. Nevertheless, when it was made to appear beyond the possibility of contradiction that the complainant was not entitled to the preliminary injunction, he disregarded the formal matters of practice, and dissolved the injunction or restraint then existing. From these cases it is argued, and I think with soundness, that, where a bill upon its face appears to set forth a valid cause of action, but it is otherwise made to appear by the complainant's own proofs, such as the verifying affidavits or schedules annexed to his bill or otherwise, that in all truth and honesty the bill does not exhibit the true state of facts, and that the latter preclude all possibility of his success, there is inherent power in the Chancellor to dismiss the bill. For the purpose of establishing the necessary facts to bring their motion within the rule just expressed, the defendants, by answers to interrogatories, the affidavit of complainant's attorney filed by the complainant, his solicitor and counsel in this suit, and the examination of the complainant in open court, now established by the oaths of the complainant himself and his own witness that the alleged extension of the time for passing title was accorded, not by the defendants or either of them, but by their attorney, who was without authority to do so. In this connection it should be said in fairness to him that the attorney for the defendants, and now their counsel in this suit, emphatically denies that any such extension was promised by him, but, on the contrary, he says that at that time he expressly declined to accede to the complainant's request that additional time should be allowed him for conforming with the terms of his contract.

There can be no doubt of the authority of a vendor to make time of the essence 6f a contract by giving notice to the vendee, as was done in this case, notwithstanding the doubt expressed by Vice Chancellor Garrison in Cranwell v. Clinton Realty Co., 67 N. J. Eq. 540, 58 A. 1030. The matter has been set at rest by the opinion of Vice Chancellor Backes in Orange Society of New Jerusalem v. Konski, 94 N. J. Eq. 632, 121 A. 448, affirmed on the opinion of the Vice Chancellor in 122 A. 753. Therefore time was of the essence, and that is an extremely important circumstance. Therefore any default in this respect on the part of either party gave to the other the...