Andrews v. Bell

The opinion of the court was delivered, January 7th 1868, by Strong, J. The article of agreement, the specific performance of which it is the object of the bill to enforce, specifies no time when the deed for the land should be made and when the consideration should be paid. It is therefore to be understood as imposing an obligation to execute the contract at once, or, at least, without any unreasonable delay. The contract alone is to be considered, when we inquire after the rights and duties of the parties. And looking to the contract, it is clear that Bell, the vendor, might have tendered a deed the next day after the agreement was signed, and brought a suit for the consideration. Such being the legal effect of the agreement, and the duty of the vendee to pay being immediate, it is most important to inquire, when he comes into a court of equity, whether he has performed that duty. Having secured by the contract an option to pay the stipulated price for the land either with money or with certified estimates of The Pittsburg and Steubenville Bailroad Company, he was not at liberty to delay payment until a change might take place in the market value of those estimates. If in any case it is incumbent upon a party who seeks to enforce the specific performance of a contract, to show that he has been guilty of no unnecessary delay, the rule is peculiarly applicable to this case for reasons found in the contract itself. The vendee was bound to pay in money or certificates. The market value of the latter was changeable. What it was when the contract was made, the parties may be presumed to have known. What it might be at a later time, they could not know, and as only the vendee had an option the advantage of delay was altogether on his side, if his right to choose was not affected by delay. In the article of agreement there is nothing that justified delay in making payment until new certificates could be obtained from the railroad company. If the vendee desired to pay with certificates and he could not obtain them it was his misfortune, not that of the vendor. He might, perhaps, have obtained them from sources other than the railroad company. To a considerable extent they had been upon the market before the contract was made. They were the subjects of purchase and sale. In June 1864, or about that time, very shortly before the parties entered into their agreement, some were sold at 55 cents on the dollar, and in January 1865 they were offered at 50 cents and there were no buyers. The evidence very satisfactorily shows that the certificates were sinking in market’ — 350 — value after the time when the parties entered into their agreement. In January 1865 no sales appear to have heen made, and none thereafter. The master reports that about the 1st of that month it became known that mortgage bondholders of the railroad company intended to institute proceedings to sell the road on account of the non-payment of a large amount of interest in arrears. It does not, indeed, appear that Andrews, the vendee, had knowledge of any such intended proceedings. But general knowledge must have greatly depreciated the price of certified estimates of debt of the company, if not entirely destroyed their market value. Indeed, the fact is most significant that after that time there does not appéar to have been any sale whatever. In view of this it is plain that the parties did not then stand in the same position as that in which they stood on the 10th of August 1864, when the agreement was made. If the price of the land could be paid in January 1865 with certified estimates, the contract did not then give to the vendor the advantages which it assured when it was made. This is a vital consideration when we are asked to decree specific performance at the suit of the vendee. Unless the diminution of advantage to the vendor was caused by his act, or assented to by him, it would be grossly inequitable to compel him to part with his land and receive in payment therefor only certified estimates. Such was not his contract. The legal effect of his agreement was that he would convey the land for a price to be paid in certificates, provided those certificates were paid at once, or without unnecessary delay. Failure to pay at the time stipulated in a contract may not in all cases be an insuperable bar to a decree for specific performance, but when an unexcused delay has produced a material change of the circumstances, when in consequence of it the contract has become more onerous upon one of the parties than it would have been if performed at the appointed time, a court of equity will never 'decree its specific execution at the suit of the defaulting party. The length of delay, though itself important, is less so than its effect upon the interests of the parties. Nothing in this case presents any justification for the failure of Andrews, the complainant, to pay the price agreed for the land, either in money or in certified estimates, until January 30th 1865, when he tendered payment in the latter. It has already been said that no excuse is found in the fact that he could not or did not obtain from the railroad company such estimates until near the close of that month. He had taken the risk of that. Nor is there anything to show that Bell, the vendor, ever consented to such delay. On the contrary, he appears to have been urgent to have the contract executed. It was he that moved, not the complainant. He executed a deed on the 10th of September 1864, and presuming that' the vendee would prefer making payment in certified — 351 — estimates, he pressed for them. According to the testimony of Robert Henderson, the only witness who speaks of the subject, in the fall of 1864 he urged repeatedly that Andrews should get the scrip, promising if he could get some then, he would give time to pay the balance. None was then paid to him. True, the witness says of one conversation between the parties, in the fall of 1864, that the understanding was, that as soon as Mr. Andrews could get the board of directors together to issue the estimates, he would hand them over to Mr. Bell to get his deed. This evidently means no more than the understanding of the witness as to what Andrews then promised, for he added immediately that Bell said he would take part — $3000 or $5000 — at that time, and the balance at another. But Andrews then paid nothing. It was not until weeks afterwards, not until the rumor of intended proceedings by the mortgagees against the company had got afloat, that he paid or offered a dollar. It would be giving very undue effect to the testimony of Henderson, were it regarded as proving an agreement of Bell to accept estimates at any time when the board of directors might be got together to issue them, or to waive his rights under the contract. Nor is there anything favorable to the complainant’s claim to be deduced from the fact that in January 1865 the vendor accepted $5000 in estimates, for the acceptance was accompanied by the declaration that it was not to be regarded as a waiver of the defendant’s right to refuse payment of the balance in any other thing than money. Bell had waited for Andrews to enjoy his option longer than he was under any obligation to wait, and if then he accepted a part of the debt in certified estimates, it was a favor to the debtor, not the debtor’s right. This is undeniably so, if the deed executed September 10th 1864, and tendered on the 10th of January 1865, and again on the 12th, was such a deed as the vendor was bound by the articles of agreement to make. Whatever option Andrews had prior to the tender, he had none afterwards. He was bound to avail himself of his right, if any he then had, to pay in estimates, >vhen he was legally called upon for payment. Not having paid then in any way, he could only pay with money afterwards. His tender of estimates on the 30th of January 1865 was therefore ineffective to give him any standing in a court of equity. We may add that his conduct, when the deed was tendered, shows that he was without any such excuse as he now sets up, for his laches. On the 10th of January he objected to the deed because it was not stamped. When it was again tendered stamped, he objected that the stamp was not cancelled. When that difficulty was removed, and only then he objected that the deed was not according to the agreement. He did not state wherein, and that his objection was not because it did not grant all the land called for by the agreement is evident from the fact that when he came — 352 — to file his bill be claimed a conveyance of the land as it was described in the deed. It is idle to contend after this that, by virtue of any arrangement with the vendor, he had a right to delay payment until he could obtain certified estimates from the railroad company. But independent of any effect of the complainant’s laches prior to January 12th 1865., treating that for the present as of no importance, we have said that if the deed tendered on that day was such as the agreement contemplated, the complainant had no right remaining after the tender to insist that the vendor of the land should, receive payment of the purchase-money in certified estimates. This brings us to perhaps the most important question in the case. It is this: What were the boundaries of the lot ■which Bell undertook by the article to sell; or did the deed tendered by Bell properly describe the subject of the complainant’s purchase ? The parties differ in their understanding of the location of the west line of the lot. The description in the article of agreement represents the land sold as, a piece of ground in the plan of Benvilla, containing about five acres, more or less, “ beginning at a point on the eastern line of street not yet open, but representing a continuation of Fleming street, corner of lot No. 52; thence eastwardly along Thompson Bell’s line about 440 feet, to a point corresponding with the western line of lot sold to Dr. C. G-. Hussey; thence northwardly and parallel with the line of Federal street to the south-west corner of lot sold for a burying ground; thence a right angle westwardly 250 feet to Willis street; thence northwardly to the southern line of a 30 foot street; thence a right angle westwardly along line of said street about 160 feet; thence a right angle southwardly by eastern line of street not open, to place of beginning.” This is the whole description. In determining what the parties meant by it, it is indispensable to keep in mind that the property described was part of a town plot, and that the sale was made with reference to a plan of the town. That plan as attached to the complainant’s bill represents streets laid out, some opened, and one running north and south, nearly or quite parallel with Federal street. The plan also represents lots laid out and numbered abutting westwardly on the street marked “ street not yet open,” the southernmost of which is numbered 52. It also exhibits a portion of Fleming street outside of the town plot, but that street is not in fact extended into the plot, nor is it marked upon the plan as a street either open or not yet open within the limits of the town. It is, however, to be seen where it would lead, if extended without deflection from its terminus on Fairmount street into the plot of the town. As already observed, it is not so extended, and it is not marked upon the plan as an opened or unopened street. Returning now to the description ; it is, in some respects, undoubtedly — 353 — obscure. The obscurity arises from an apparent discrepancy in the terms employed to designate the point of beginning. That is declared to be “ a corner of lot No. 52,” and a point on the eastern line of street not yet open.” But what street? ,The agreement says one, “ representing a continuation of Fleming street.” It does not, however, say, a continuation by a right line, and the plan contemplated no such continuation. Besides, the corner of the lot No. 52 would not be on the eastern line of that street, if it were thus extended. It would be 102 feet further east. But it is on the eastern side of the street laid down on the plan and marked street “ not yet open,” and distant about 440 feet from the Dr. Hussey lot which bounds the property sold on the east. There would be no difficulty in fixing the location of this point, were it not for the phrase “ but representing a continuation of Fleming street,” used as descriptive of the street not yet open. That phrase must however be construed, if possible, so that it shall not contradict any other part of the description. And it may be. In a certain sense, a loose sense it is true, the street on the plan marked “not yet open,” on which lot No. 52 abuts, represents a continuation of Fleming street. It does not, indeed, extend from Fleming in a continuous right line, but it runs in the same direction continuously .north, and its debouch upon Fair-mount street is only about 100 feet distant from the actual terminus of Fleming, connected with it by an intermediate street. It is easy to see how, with the plan before them, the parties to the agreement may have regarded and spoken of the street “ not yet open,” as representing a continuation of Fleming street, not an actual continuation but representing one. It must have been so, or the only definite description, the corner of lot No. 52, must be disregarded, and treated as meaning nothing. And if the parties did regard and speak of the street not yet open as representing a continuation of Fleming street, the entire description is consistent. All its particulars are in harmony. Beginning on the eastern side of that street, at a corner of lot No. 52, the distance eastward to the Hussey lot is about 440 feet, which is the distance called for in the description, and the length of the northern boundary including the breadth of Willis street is about the same. Then the quantity of land embraced within the boundaries is about 5J acres (the quantity called for in the agreement being about 5 acres more or less). The description of the last-mentioned line ma,y also be noticed. It is a line running at right angles from -the southern side of a 30 foot street on the north, southwardly “ by eastern line of street not open,” to the place of beginning. The street by the eastern side of which it is to run is not named. It is not said by the eastern line of Fleming street continued, and there is on the plan no street not open, by — 354 — which it can run, unless the place of beginning is at the corner of lot No. 52. On the other hand, if the point of beginning is as the complainant claims, on the east side of Fleming street extended continuously by a right line, not only must the call for the beginning at a corner of lot No. 52 be rejected, but the distances from the west to the east boundary of the lot must be greatly extended, made nearly a quarter longer than they are described in the agreement. Instead of being 440 feet, they become over 543, and the quantity of land instead of being about 5 acres becomes 6 acres and 119 perches. It is argued that the distances mentioned in the agreement, from the Hussey lot to the west boundary, must be treated as mentioned in mistake, and that they must be corrected by the call for the “ street not yet open, hut representing a continuation of Fleming street,” on the principle that distances yield to calls for adjoiners, if inconsistent with such calls. But the principle is inapplicable to the facts of the case. Fleming street is not called for as an adjoiner; no mark on the ground, and none on the plan, are called for on the west, at the place where the complainant would locate the western boundary. In the aspect of the case most favorable to him, there is no more than a call for an imaginary, a possible line, not even appearing on the plan. The call for a corner of lot No. 52 is much more like, a call which would control distances, if there were a mistake in them. That does appear upon the plan, and so does the street laid out but not yet open. Another consideration of some weight, though not controlling, may also be mentioned. It is, that the west line claimed by the plaintiff, divides nearly in the middle a row of lots laid out in the plan of the town. Keeping still in mind that the plan was referred to, and was doubtless before the parties when they made their agreement, there is, to say the least, very considerable probability that such a derangement of the town-plot was not intended. On the other hand, the line claimed by the defendant runs along the east side of a street marked on the plan “ not yet open,” precisely as described in the contract. It divides no lots. It leaves the town-plot undisturbed. In view of all this, we think the true construction of the agreement is, that the vendor sold only that land which is bounded on the west by the eastern side of the street marked on the plan “not yet open,” on which lot No. 52 abuts, and therefore that the deed tendered by him correctly described the property sold. There is a clause in the article that, at first sight, is fitted to raise a doubt whether the parties did not understand it as embracing land farther west. It is that in which the vendor reserves a piece of ground on which the spring-house was built, about thirty by eighty feet. From this it would seem the parties thought — 355 — the spring-house either was or might be within the boundaries of the tract sold; else why reserve it ? In truth, it is not within the boundaries unless the western boundary is on Fleming street extended by a right line. But the reservation is no part of the description of the property sold, and its introduction into the agreement is susceptible of an easy explanation. It is found in the fact more than once repeated, that the sale was by the plan of the town. On that plan the spring-house was noted and located not on Fleming street extended, but east of the street marked “not yet open.” On the plan, therefore, it appeared to be within the boundaries as we hold them to be. It was an incorrect representation, but it accounts sufficiently for its reservation by the vendor though not actually covéred by the grant. The agreement also contained a contract for the sale of a right of way to the complainant and one Henderson, for a stipulated price, payable as was the consideration of the land. Henderson did not sign the contract, and Andrews alone was responsible for the price. His laches in regard to that was the same as in regard to the purchase of the land. If he cannot maintain his bill for the specific performance of the executory sale of the land, he cannot for that of the right of way. The prayer of the bill is that the defendant may be decreed to execute and deliver deeds for the land and right of way, and to receive certified estimates in payment. for them. To any such relief what we have said shows that he is not entitled. The decree of the District Court is affirmed.