Wirtz v. Guthrie

• Court: New Jersey Court of Chancery
• Writing for the Court: EMERY, V. C.
• Citation: 81 N.J.Eq. 271,87 A. 134
• Parties: WIRTZ v. GUTHRIE et al.
• Decision Date: 17 May 1913

87 A. 134
81 N.J.Eq. 271

WIRTZ
v.
GUTHRIE et al.

Court of Chancery of New Jersey.

May 17, 1913.

Bill for specific performance by Lisette Wirtz against Thomas H. Guthrie and others. On demurrer to amended bill. Demurrer sustained.

The question now to be decided is the validity of the demurrer to an amended bill, but, by reason of the possible relevancy of the proceedings on the original bill, the whole case will be stated.

The original bill was filed by the vendor against the purchasers for the specific performance of a written agreement dated May 15, 1911, for the purchase and sale of lands on Halsey street in the city of Newark. The lands mentioned in the agreement consist of two lots, the description of which by metes and bounds was given in the agreement, a copy of which was set out in the bill. The purchase price was to be $72,000; $1,000 to be paid upon the signing of the agreement, and the balance to be paid or secured on the delivery of the deed. The conveyance, which was to be made on November 15, 1911, was to be subject to the rights of five specified tenants, their leases expiring May 1, 1912, and the agreement stated that these leases call for the payment of a gross rent of $5,640 per annum. Tender of performance on complainant's part and refusal of defendants to carry out the agreement was alleged; and, offering to perform the agreement on her part, complainant prayed specific performance of the written agreement by the defendants, with the usual prayer for general relief. Defendants answered this bill, admitting entering into the agreement in writing set out in the bill, and as a defense to its specific enforcement set up false representations made by complainant in the agreement as to the gross rent which "said premises" yielded, which representations induced defendants to execute the agreement. By cross-bill with their answer, the defendants set up their entering into the written agreement set up in the bill, allege that previous to and at the time of the execution of the agreement and in the agreement the complainant represented to defendants that the premises described therein were occupied by five named tenants, all under leases expiring May 1, 1912, and that said leases called for the payment of a gross rent of $5,640 per year, which representations "made as aforesaid" by complainant induced defendants to execute the agreement, and were relied on and material to the contract. The defendants charge that the gross rent for said premises is considerably less than $5,640, and therefore said representations were false and made for the purpose of inducing defendants to enter into an agreement which they otherwise would not have done. The cross-bill prays that the agreement may be decreed to have been fraudulently and unduly obtained and be set aside as void and may be canceled, and that the vendor may be directed to repay the money paid on the execution of the agreement, with interest. A prayer for general relief is added. Complainant filed replication to the answer, and, answering the cross-bill, says that previous to the execution of the agreement and in the agreement the complainant did represent to the defendants that the premises therein described were occupied by the persons named

87 A. 135

in the agreement, and that the representations in the agreement as to the gross rents called for by the leases of these tenants are true, and denies that the gross rent for said premises is considerably less than $5,640. Issue on this answer was joined by defendants.

At the hearing on the bill and cross-bill, it appeared by oral evidence that, by a mistake in drafting the agreement, a lot located between the two lots described in the agreement, also belonging to complainant, and which was part of the premises intended to be sold and purchased, was not included in the description of the premises to he sold. Complainant thereupon applied to amend her bill, and has now filed an amended bill, repeating substantially or in haec verba the allegations of the original bill, and adding allegations to paragraph 3 that the premises intended to be sold consisted of a plot on Halsey street, with a certain right of way over an alley from the rear thereof to William street; that the premises were conveyed to complainant in three distinct parcels, and that the descriptions contained in the agreement included but two of the three parcels, and that through inadvertence and mistake the tract known as the middle tract was omitted; that the premises so intended to be sold and conveyed by complainant were well known to the defendants; and that they well knew that it was complainant's intention to convey the whole of the said curtilage with right of way, and it was their intention to purchase the same. It is further alleged (paragraph 4) that certain of the tenants mentioned in the said agreement were in possession of that portion of the whole curtilage, the description of which was accidentally omitted, and that the defendants before and since the agreement well knew that the tenants named in the agreement were together in possession of the whole of the premises intended to be sold and conveyed by complainant, including the portion accidentally omitted from the description of the agreement. It is also alleged that, at the time fixed for closing the title, neither defendants nor their counsel informed complainant of this omission, and that complainant did not discover the omission until after the time fixed for closing title; that she supposed this tract was included when she executed the agreement; and that the defendants have admitted that it was the Intention of complainant to convey, and their intention to purchase, for the consideration mentioned in the agreement, as well the tract omitted as the tracts described.

By a further amendment to the amended bill and added to paragraph 3, it is expressly alleged that "the only contract in writing between complainant and defendants is the contract particularly set forth, and that the intention of complainant to convey, and the defendants to purchase, the tract inadvertently omitted is not manifested by any instrument in writing."

Complainant in the amended bill offers to convey the omitted, as well as the described, tract on the terms for payment of the written agreement, which offer defendants refuse to accept and complainant tenders such conveyance. Complainant? therefore prays a reformation of the contract so as to include the omitted tract in the description of premises to be conveyed, and a specific performance of the agreement as reformed, with a prayer for general relief. To this amended bill the defendants have demurred, assigning three causes of demurrer, only one of which, the second, is relied on; the others having been abandoned at the hearing and on the brief. This second ground is "that neither the promise or contract alleged by the...