Calkins v. Landis

21 N.J. Eq. 133

• Court: New Jersey Court of Chancery
• Decided: May 15, 1870
• Status: Published

Opinion

The Chancellor.

The bill charges, that the defendant agreed to sell one hundred acres of land in Vineland to the complainant; that the complainant made some of the payments, and that defendant, by parol, gave him further time for the other payments ; that the defendant has not conveyed the land to the complainant, but has sold it to others. The bill prays that he account for the amount received, and be compelled to pay the same to the complainant.

The defendant, in his answer, admits the sale, and denies that he extended the time for the payments not made. He states that he gave notice that the contract was forfeited for not complying with the conditions; that the complainant agreed to give up the contract, and that the payments made on it should be transferred and credited to other contracts, made by the defendant with the complainant, and that they were transferred to and credited on these contracts ; and that deeds were given to and accepted by the complainant, the consideration of which was paid by the transfer of these payments.

The responsive denial of the extension of time is contradicted by the evidence of the complainant only; it is, therefore, not proved. The agreement to give up and surrender the contract to convey the one hundred acres, and to transfer the payments made on it to other contracts, and the transfer and the acceptance of deeds founded on such transfer, is proved by the evidence of the defendant and of J. L. Rink, and contradicted by the evidence of the complainant only. It is proved, to my satisfaction; and that agreement and surrender is a bar to the present suit.

The bill must be dismissed with costs.