Reddington v. Henry

Nesmith, J. The original subscription paper, signed by the plaintiffs, and delivered to defendants, established the foundation of the contract between these parties. This was executed about the 21st of November, 1865. The plaintiffs having paid all the money which the terms of their contract required, the obligation was then cast upon the defendants to make and execute to them, together with the other shareholders, or associates, the several leases of the land for which they had paid, agreeably to the terms and fair intent of their said original bargain. A fair construction of the language employed by the parties would seem to require of the defendants, the delivery of such a lease as would give to the plaintiffs, for the term of thirty years, a good title and free enjoyment of the said premises described in the subscription paper. The contract did not express or imply that the lessees should pay any more rent; the one hundred dollars being regarded in the nature of an advancement of plaintiffs’ share of rent for the whole term. The past fulfilment of the contract would, therefore, require from the defendant a lease of the premises mentioned in said subscription paper, unincumbered by any claim of additional rent, or other like imposition, or any uncommon reservation, or new condition, or burthen of any kind whatsoever. The parties had a legal right to vary their contract by mutual agreement, so far as to substitute one joint lease for several; the covenants of .the new lease to remain the same as originally provided. The lease, as prepared by the defendants, and furnished to the plaintiffs and their associates on the 9th day of December, 1865, was rejected by them, as not conforming to the original contract. Was this lease, which was then tendered to the lessees, such a one as they, as reasonable men, were bound to accept? On recurring to it, we learn that the leading object of this demise from the defendants was to enable the lessees to procure from the lands therein described, oil or petroleum, and other mineral productions lying in, on, or under the said premises, and for erecting necessary buildings for working and storing the products of this nature, and for other purposes connected therewith. We find also the following reservations incorporated into said lease: " Reserving to [278] the defendants, as lessors, the use and occupation of all such parts of the demised premises as shall not be required for the purposes aforesaid for agricultural purposes.” Then again, we find another condition in the lease, that the said lessees shall pay to the lessors annually one shilling during said term ; and also the more important provision, which was cause of special objection by the lessees : " That they must deliver to the lessors one fifth part of all the oil, which the said lessees shall obtain from the demised premises during said term, or at the option of the lessees, they may pay to said lessors at the times stated in said lease, the cash value of said oil at the oil wells.” This last provision is what is denominated the royalty, in the language of the case. Superadded to the three new provisions, the duration of the term of the lease, when presented to the lessees, was reduced to two years, but at some subsequent period of time, not stated when, Henry struck out two years and inserted thirty. As early as the 18th of December, 1865, Henry, one of the defendants, had notice from one of the plaintiffs, and Eastman, the agent of the lessees, that the lease was not sufficient, and that the subscribers, or lessees, would not accept it. On the first day of January, A. D. 1866, the defendant Henry again met the subscribers, and informed them that he could not obtain a release of the royalty, and that they could not give a lease without that reservation. On the 11th day of April, the said Henry again informed the plaintiff, George B. Eeddington, and Eastman, the agent, that it was out of his power to give such a lease as was demanded, as he could not obtain a release of the royalty; and then the case finds that both Eeddington and Eastman made at this time a special demand upon Henry for such a lease as should conform to the original contract, and also requested Henry to refund the money received by them towards the contract. The case shows that some other events subsequently transpired, not affecting materially the questions at issue between the parties. Under the facts as here disclosed, we have no hesitation in arriving at the conclusion that the aforesaid provisions, which were incorporated into the lease, and not found in the subscription paper, were such material variances, conditions, burthens or incumbrances as furnished to the lessees sound and substantial reasons for refusing to accept the lease, as a fulfilment of the contract of the defendants, and, of course, furnished to the plaintiffs just cause for the rescission of their contract, and for demanding, and recovering back their money paid under it. The contract remained open and executory, to be fully completed by defendants, only by the delivery of such a lease as would conform to the original contract of the parties; and when the final demand was made on the 11th of April, 1866, for the lease, the defendants were bound to have had ready a good unincumbered lease of the whole lands embraced in the subscription paper, to be quietly enjoyed by the lessees for any and all useful purposes, for the term of thirty years, free from the new conditions which were embraced in the instrument against the will of those who had paid their money. We think the plaintiffs had waited a reasonable time to enable the de [279] fendants to fulfil their contract, before the demand was made, and the right of action has now fully accrued to plaintiffs to recover the money by them paid. The delays granted to the defendants were at their request, and for their special accommodation. If the. purchaser demand such a deed as the contract calls for, and the vendor refuse to give it, but insists on his receiving a different and inferior title, the contract may be regarded as broken, and the purchaser may sue at once and recover the money paid. Foote v. West, 1 Denio 544; Baker v. Robins, 2 Denio 136; Camp v. Morse, 5 Denio 161; Lawrence v. Taylor, 5 Hill 107; Judson v. Waas, 11 Johns. 140; Little v. Paddleford, 13 N. H. 167; Swan v. Dudley, 22 Pick. 485; Brown on the Statute of Frauds, sec. 122 and notes; Fanar v. Nightingale, 2 Esp. 630; Shove v. Webb, 1 Term. 732. The cases clearly show that the right in the vendee of land under a parol contract to recover back what money he has advanced or paid, is confined to those cases where the vendor has refused, or become unable, to cany out the contract; the plaintiff himself having faithfully performed or offered to perform his part of the contract. The case Fletcher v. Button, 4 Comstock 319, shows the following facts : At the time of the execution of the covenant to convey, and for some time after-wards, the defendants’ lands were incumbered by a heavy mortgage; arid the defendants were unable to convey a good title, and on this ground neglected and refused, when a deed was demanded. It was held by the court, that the purchaser was released from his agreement. If a seller will not give an assurance, when reasonably demanded, he loses his bargain, and the purchaser is not boimd to wait until he is able to convey. If the purchaser has paid his money, he may rescind the contract, and recover back the purchase money paid with the interest thereon. In such case the vendor holds the money without consideration. Allen v. Webb, 24 N. H. 278; 8 Johns. 257. Under our view of the law of the case, applicable to the facts stated, we see no grounds for any presumption that the jury could be justified in finding the 'delivery of a valid lease to the lessees. The lease offered was not the one contracted for, and is found of no value to the plaintiffs. It is suggested that it should have been returned, with the subscription paper, to the defendants, before the action was brought. These papers appear to us to be entirely worthless, except as evidence of the shadow of things not seen, at least by the plaintiffs. We are of the opinion they should be filed with the clerk of the court, to be preserved for the future use of those in interest. In Perley v. Balch, 23 Pick. 283, Chief Justice Shaw says, " that where the property is worthless, its return would be a useless ceremony which the law never requires.” In Thurston v. Blanchard, 22 Pick. 18, the same judge remarks, that after the plaintiff claims to elect to rescind such contract as exists here, the obligation of contracts not assignable ceases to be binding and of any value, and of course need not be returned before the action is brought. We are of the opinion that the ruling of the court in this case was right, and that there should be Judgment on the verdict.