Kelly v. Chinich

— 102 — The opinion of the court was delivered by Parker, J. The decree in this cause was heretofore ordered affirmed as on a default of appellants, on the authority of Hazard v. Phœnix Woodworking Co., 78 N. J. Eq. 568, for the reason that the cause having been marked to be submitted on briefs, the brief sent in for appellants was not signed by counsel. See 90 N. J. Eq. 602. Thereupon appellants employed counsel, who appeared and prayed a rehearing of the appeal on the principal ground that the failure to present a brief signed by counsel was due to ignorance of the rule enunciated in the Hazard Case above cited. It was not denied that the solicitors who signed the brief were aware that they would not be heard orally; but it was urged that they believed a written brief signed by an attorney-at-law as solicitor would be accepted. Whether with this explanation we should have reheard the appeal if the respondents had objected need not be considered, for as their counsel present on the application for reargument declined to object to a reconsideration on the merits, and a brief, qoroperly signed by counsel, was then duly submitted, we have concluded to take up the appeal on the merits. Considering it in this aspect, our examination of the'evidence leads to the conclusion that the vice-chancellor correctly decided the questions of fact in the case, and we accordingly accept his findings in that regard. On "this theory, Mr. Herr, who, as attorney of the defendants, purchasers, had drawn the contract of sale in duplicate, and had attended to its execution by all the parties, was made their depositary until such time as defendants had satisfied themselves by personal inquiry that there were no building restrictions limiting the height of buildings intended to be placed on the property, and if the defendants found there were none, the complainants’ duplicate of the contract, and the check of the defendants for the initial payment, were to be delivered to complainants and not otherwise. The vice-chancellor correctly found as facts that no such restrictions existed and that the purchasers so ascertained. In consequence, the condition was performed; and if — 103 — Mr. Herr was the lawful depositary of an escrow, complainants were entitled to. the contract for the purpose of enforcing it. There has been some contrariety in the decisions as to whether the agent or attorney of a party can be a depositary for purposes of escrow; the older cases holding that, according as he is the agent of one party or. the other, there is an absolute delivery, or none at all. 16 Cyc. 574; 11 Encycl. L. (2d ed.) 333, tit. "Escrow;" Ordinary v. Thatcher, 41 N. J. Law 403; Lake v. Weaver, 76 N. J. Eq. 280, 288. The matter has been set at rest in. this state, however, as to an attorney for the grantee or -party asking the delivery of the contract or deed, by the recent case of Bowman v. Brown, 87 N. J. Eq. 47; decided by Vice-Chancellor. Stevens, whose opinion was adopted by this court in affirming the decree. Ibid. 363. The rule there approved and taken from 10 R. C. L. 631, is, that “if the agent’s or 'attorney’s relation to his principal is such that his acting as custodian of the deed or paper is not antagonistic to his principal’s interests and the paper was put in his hands not as a delivery, but as an escrow, such general agent or attorney of the grantee, payee or obligee of an instrument is not incapacitated from acting as depositary of the instrument, but becomes the agent of both parties for the purposes of the escrow.” There seems to be no reason founded, in logic or good sense, why a similar agent, of a grantor or obligor may not similarly act as depositary; and so the cases seem to hold (16 Gyc. 57/, and citations); and it is settled as a fact in this case that the parties agreed that he should act in such capacity. There was nothing in his employment by defendants that made the escrow by its terms antagonistic to their interests. It follows that complainants were entitled to the delivery of the contract and cheek. They brought their bill for specific performance upon the contract as an instrument in fact delivered to them, which may have been premature. But this point was not made before the vice-chancellor, apparent^, nor in this court. It is argued in the brief that “there was no delivery,” but the reasoning is simply that there could be no delivery until defendants authorized it; and this has been disposed of above. The technically correct course was to sue to compel delivery of the — 104 — instrument in the first place. 16 Cyc. 585; Fred v. Fred (Vice-Chancellor Emery), 50 Atl. Rep. 776. But as no point'has been made of this, and under present equity practice'in this state the two rights of action may be joined, and the whole case has been already tried out and there is no question thát if the 'complainants weré entitled to the delivery of the paper they were entitled to enforce it, tire record will be remitted to the court of chancery with directions that upon a suitable amendment of the bill, bringing in Mr. Herr as a party, if necessary, the decree be modified to provide both for delivery and specific performance of the contract. Neither party is entitled to costs in this court. For affirmance — The Chief-Justice, Swayze, Trenci-iaed, Parker, Minturn, Kalisoh, Black, White, Heppeni-ieimee, Williams, Taylor, Gardner, Ackebson — 13. For reversal — Bergen—1.