Getchell v. Jewett

4 Me. 350

• Court: Supreme Judicial Court of Maine
• Decided: May 15, 1826
• Status: Published

Opinion

Mellen C. J.

delivered the opinion of the court.

The equity or chancery powers of this court are of a limited character, compared with the vast and extensive jurisdiction of the court of chancery in England ; which exercises its authority in cases of accident and mistake, of account, of fraud, of infants and their interests, of trusts, and in compelling the specific performance of agreements ; and yet, as Maddock observes, “ ac • “ cording even to this enlarged classification of the subject, it “ may not be very obvious how the great multiplicity of doctrines “ arising out of the equity jurisdiction can be included.” By our laws there are two cases where an equitable powder is given to and exercised by this court, and the court of Common Pleas-One is given in the second and third sections of the Act of 1821, ch. 50 ; and is exercised in relieving against penalties and forfeitures, and rendering judgment for so much as is due in equity and good conscience ; the other is given in the fourth section of said act ; and is exercised in the total or partial remission of the forfeited penalties of recognizances taken in criminal prosecutions, in actions of scire facias. In these two instances the proceedings are at common law. By the act of 1821, ch. 39, equity powers are given to the same courts in cases of mortgage ; and in these cases the powers are exercised for the benefit of the mortgagor by a bill in equity ; and the proceedings described in the first six sections, are essentially conformable to chancery practice. But another chancery power was given to the Supreme Judicial Court of Massachusetts on the 10th of February, 1818, which they still, retain ; and similar power was given to this court by the first section of the Act of 1821, ch. 50, in these words; — -“Be it enacted, that the justices of the Supreme Judicial Court shall have power and authority to hear and determine in equity all cases of trust, arising under deeds, wills, or in the settlement of estates ; and all cases of contract in writing where a party claims the specific performance of the same, and in which theie may not be a plain, adequate and complete remedy at law.” — The act was passed February 20, 1821, and it contains a proviso that it should not apply to any contracts except those made in writing, since the 10th of February, 1818 — the day the Massachusetts act was passed.

Thus it appears that the only chancery jurisdiction given exclusively to this court, has relation to trusts arising under deeds, wills, or in the settlement of estates ; and to the specific performance of contracts in writing. This jurisdiction is tobe exercised according to the usual modes of proceeding in courts of chancery, as simplified by the ££ rules for the regulation of the practice in chancery,” established by the -Supreme Judicial Court of Massachusetts, at March term, 1818 ; and which were adopted by this court in York, at August term, 1820. As the plaintiff in his bill has not placed his claim to a specific performance on the ground that the deeds in question, and the defendant’s agreement, taken in connexion, constitute a mortgage ; and as it is of no importance whether they do or do not, provided the plaintiff has equitable ground, independent of that consideration, on which to claim such specific performance, we overrule the demurrer, and proceed to examine the cause upon its merits.

Upon the facts appearing in the bill and answer, the defendant founds two objections to the plaintiff’s claim. He urges first that, as the notes were not paid to Johnson, nor the debt due to the defendant, at the days specified in the agreement, this is a failure fatal to the bill ; and by means of it the defendant is wholly absolved from hisengagement. And secondly, that if this omission and the lapse of time have not absolved him, the circumstances of the ease shew that the plaintiff has no equity, nor any fair claim to e specific performance as prayed for in his bill.

As to the first point, the defendant’s counsel contends that where a remedy cannot be had by an action at law to recover damages for a breach of the contract, the court will not compel a specific performance. In support of this position he cites 1 Harrison's Ch. Pr. 29. Such an action could not be maintained against Jewett, because his engagement was to reconvey, provided the plaintiff should make the before mentioned payments at the times appointed ; and this he did not do. The position in Harrison is not true in the broad sense in which it is laid down. Newland, in his treatise, page 109, says, “there are several species of con- “ tracts which a court of equity will enforce, on which no action S£ could he maintained at law to recover damages;” — and he goes on to enumerate many of them. See also Caunel v. Buckle 2 P Wins. 244. Newland 230. in the case of Alley v. Deschamps, 13 Ves. 224, which was a bill for specific performance, the Lord Chancellor in delivering his opinion says — “ This relief, I have £s formerly observed, was first given upon a legal right, instead of “ damages ; which was followed by another class of cases equally u clear, that when a party was not able to perform his engagement ic according to the letter of it, if the failure was not substantial, the other should not be permitted to take advantage of the strict S£ form.” In Lloyd v. Collet 4 Bro. 469, in note to Harrington v. Wheeler 4 Ves. 690, the Lord Chancellor held a language more severe. His words are, “ Plaintiff says, by my own default this “ contract is void in law ; I cannot succeed at law ; on the com “ trary, the other party is entitled to recover back the money he has paid in expectation of the execution of his contract; therefore an equity arises to tne ; an equity out of his own neglect! it “ is a singular bead of equity.” Comparing this last case, which was decided many years before, with that of Alley v. Deschamps, we perceive an increasing disposition to extend equitable relief, where a failure in some unimportant particular has occurred, but no substantial injury been occasioned.

It is true that in Gibson v. Patterson 1 Atk. 12, Lord Hardwick seems to have laid down the doctrine, that lapse of time was of no importance ; and to have decreed in favor of a vendor, without auy regard to his negligence in not procuring his title deeds, and notwithstanding a conveyance within the time limited for the purpose by the articles. But the accuracy of the report is denied ; and in Lloyd v. Collet and several other cases, the generality of the principle laid down by Lord Ilardwicke has been overruled, and a different one established ; and it seems “ now “ the acknowledged rule in courts of equity, that where the “ party who applies for a specific performance of a contract, “ has omitted to execute his part of it for a considerable time “ after the day appointed for the purpose, without being able to “ assign sufficient reasons to justify or to excuse his delay, the “court will, not compel a specific performance of the agree- '“ ment, considering his conduct to. be evidence of his abandonment of it.” Newland 242. Lloyd v. Collet 4 Ves. 690. Harrington v. Wheeler 4 Ves. 686. Marquis of Hertford v. Boore, Astor & Boore 5 Ves. 719. Spurrier v. Hancock 4 Ves. 667, and other cases there cited. See also Guest v. Homfray 5 Ves. 818. Payne v. Miller 6 Ves. 349. Smith v. Burnham 2 Anstr. 527. Seton v. Slade 7 Ves. 265. Vernon v. Stephens 2 P. Wms. 66. Brazier v. Grattz & al. 6 Wheat. 528. In Davis v. Hone 2 Sch. & Lef. 347, the Lord Chancellor says, “ a court of equity frequently “ decrees performance, when the action at law has been lost by “ the fault of the very party seeking the specific performance; “if it be, notwithstanding, conscientious that the agreement “ should be performed; as in cases where the terms of the agree» “ ment have not been strictly performed on the part of the person “ seeking specific performance, and to sustain an action at law, “ performance must be averred according to the very terms of “ the contract.” And in Lennox v. Napper ib. 684, the Chancellor says, that the courts,in all cases of contracts for estates in land, have been in the habit of relieving, where the party, from his own neglect, had suffered a lapse of time ; and from that circumstance, or others, could not maintain an action to recover at law. Courts of equity have, therefore, enforced contracts specifically where no action for damages could be maintained ; and in various cases of such contracts they are in the constant habit of .relieving the man who has acted fairly, though negligently. Thus in the case of an estate sold at auction, there is a condition to forfeit a deposit, if the purchase be not completed within a certain time ; yet the court is in the constant habit of relieving against the lapse of time ; and so in cases of mortgage; and in many instances relief is given against mere lapse of time where that is not essential to the substance of the contract.

With these principles in view, it is now proper to examine the facts so far as they relate to the point under consideration; and see if any sufficient reasons exist which,in a court of equity, will excuse the omission of the plaintiff to pay the debt which was due to the defendant, and both the notes which were due to Johnson, at the specified days of payment. In many of the cases above cited, the court compelled a specific performance, on the ground that the conduct of the party; having a right to object, had been such as to amount to a waber of all objections, and an acquiescence in the conduct of the other party, though it had not been in strict compliance with the terms of the contract. It appears that the deed of the pew was executed on the 19th of Sept. 1822, and the defendant’s agreement was signed at the same time The deed of the moiety of the lands was executed on the day before. By the terms of the defendant’s agreement, he was not legally bound to reconvey the land, or the pew, or to pay over to the plaintiff any money he might receive on Ira GetchelVs note, unless the .plaintiff should in all respects fulfil his agreement with the defendant. Of course, the conduct of the defendant as to any part of the property conveyed or pledged, will, as to its constructive effect, have relation to the whole.

The first inquiry is whether the plaintiff had for a considerable time delayed a compliance with his engagements. As to the debt payable to the defendant himself, it had been due six months at the time the plaintiff made the deposit in the bank for the defendant’s use, and gave him notice of it. By the answer it appears that the plaintiff never paid to Johnson, the note due on the 18th of March, 1823; but that he, the defendant, paid it, after having given the plaintiff notice. and received for reply that he was unable to pay it- It is stated in the bill, however, that the plaintiff on the 18th of September. 1823. paid to Johnson one of the before mentioned notes, which must have been the one due on that day. it further appears that the sum of $159 was deposited in the Gardiner bank on the 18th day of Sept. 1823, the very day the defend ant paid the note to Johnson, and that notice thereof was then given to Jewett; and that this sum was sufficient to amount to a complete indemnity to him for his disbursements at that time, and liabilities on the plaintiff’s account. In December following the defendant received in part of the contents of Ira GelchelVs note $22,39, which he has appropriated to his own use; at least, he hao not returned or offered it to the plaintiff.- In addition to this, the defendant, ever since the conveyance of the pew, has occupied it ; and it is not alleged that this continued occupation and use have been under any other title than the deed of conveyance of the same. Nor does it appear that the failure, on the part of the plaintiff, in a strict compliance with his part of the contract, has been injurious in a pecuniary point of view to the defendant The only fact in the case-, giving countenance to the idea of an abandonment of the contract on the part of the plaintiff, is his declaration to the defendant that he was unable to make payments according to the strict terms of his contract ; a circumstance far from being unusual. It does not appear when this declaration was made ; but it does appear that it was followed up by an important fact, flatly contradicting all idea of abandon-, ment. We mean the deposit of the money in the bank And this fact was also followed by a tender in the ensuing Jlpril, of the same sum of $159 ; and also of the additional sum $¡16 89, for the defendant’s costs and trouble in the business. Admitting that the receipt of the $22 39, on Ira GstchelVs note cannot properly be considered a part execution of the agreement; it may very justly be deemed an important fact, as shewing among other things, a waiver of objections on the part of the defendant. For it must be remembered, this sum was received by him in Decern-her, 1823 ; nine months after a failure in point of punctuality on the part of the plaintiff; and nearly three months after the deposit was made at the bank. It must also be remembered, that thedncumbrance of the mortgage could be no injury to the defendant, if the debts had been paid, to secure the payment of which the land, so- mortgaged, was conveyed to him.

If by any means the value of a pledge is diminished in the hands of the pawnee, that circumstance is of bo kind of importance to him, if the pledge is redeemed. In the present case, if the defendant had received from the cashier the money deposited at the bank, he would have been indemnified, and the mortgage could never affect him. But he did not receive it, though it was placed at his complete disposal. And the question is now, whether, in a court of equity, this may not be fairly considered as having the same effect as a tender, when taken in connexion with the receipt of the $,22,39 on GetchelVs note in the December following; which sum, in case of redemption, or in other words, of indemnity to the defendant, he had no right to retain, but was bound to pay over to the plaintiff; and whether, inasmuch as an indemnity was givenf!im by the deposit, placed under his contrail, on the 18th of September his receipt of the money on Ira GetchelPs note in December following, and omission to pay it to the plaintiff or offer to pay it, do not amount to a waiver of objections on account of a failure to comply strictly with the terms of the contract on his part ; and to an assent to consider the property conveyed as still redeemable, and the whole concern open to a fair adjustment by the parties themselves, or in a court of equity; especially,when in addition to other circumstances mentioned, we find that the defendant has availed himself of the payment to Johnson by the plaintiff of the note due Dipt. 18, 1823; although lie had failed to pay the other note to Johnson, due on the 18th of March preceding, and left the defendant to pay it himself. This of itself seems a waiver of objection on account of the plaintiff’s want of punctuality. If he hod not considered himself as waiving it, he should have offered to repay to the plaintiff (he sum so paid to Jthnson, by him. Considering all the circumstances which we have stated, and on which we have commented, we feel if. our duty to answer the questions, thus discussed, in the affirmative ; accordingly our opinion is that the defendant’s first objection cannot be sustained.

As to the second objection, viz. the want of equity on the part of the plaintiff ; the defendant’s counsel, in considering it in his argument, has made two points. 1. That the case does not shew that mutuality of contract, which is essential to maintain a bill for specific performance, 2. That since the failure on the part of the plaintiff to comply with the terms of his contract, there has taken placé such a change of circumstances in relation to the property conveyed, as to render it improper and unjust for a court of equity to compel a specific performance according to the prayer of the bill.

With respect to the question of mutuality, it may be at least doubtful, whether, from the nature of the present case, the principle contended for can be applicable, because its application would be useless. The defendant could never have occasion for a power to compel a specific performance of the contract on the part of the plaintiff, for his contract was only to pay a sum of money ; and the plaintiff could never obtain a reconveyance of the property, without payment of such sum, as a preliminary measure. In this particular, the case before us differs from those cases where the object of the bill is to compel a man to complete a purchase, by receiving a conveyance, and paying the stipulated price for the estate for which he had contracted ; but without relying on this principle and view of the subject, we place our decision as to this point on another ground. The following decisions, some of them in courts of law, and some hi chancery, have been relied upon to shew that mutuality of contract in these cases is not necessary ; but that the party who has signed a contract, and who ‘ ‘ is sought to be charged by it, is es-topped by his name from saying that the contract was not duly signed within the purview of the statute of fraudsand that it is sufficient, if the agreement is signed by the party to be charged. Hatton v. Gray 2 Ch. Cas. 164. Coleman v. Upcot 5 Vin. Ab. 527. Cotton v. Lee cited in Seton v. Slade 7 Ves. 205. Fowle v. Freeman 9 Ves. 351. Wain v. Walters 5 East, 10. Saunderson v. Jackson 3 Bos. & Pul. 238. Egerton v. Matthews 6 East. 307. Allen v. Bennett 3 Taunt. 168, 175. By examining the defendant’s agreement of the 19th of Sept. 1822, in connexion with the averment of identity in the bill, which is not denied in the answer, it is evident that it relates solely to the moiety of the lands conveyed by the plaintiff on the day before ; and has reference to a conditional reconveyance of the same ; the agreement,'therefore, is sufficiently explicit in stating the names of the contracting parties, as well as the terms and consideration of the contract. Opposed to the cases last cited, are those of Hawkins v. Holmes 1 P. Wins. 770, and Lawrenson v. Butler 1 Sck. & Lejr. 19. But since the decision of the latter case, though Lord Eldon for a time hesitated, out of respect to the opinion of Lord Ñedesdale, the courts have resumed their former course of decisions. In Weston v. Russell 3 Ves. & Beame 19, the Master of the Rolls did not feel at liberty to adopt the opinion of Lord Redesdalei and his successor, in the case of Ormond v. Anderson 2 Ball & Beatty 370, was of the same opinion. And in Clason v. Bailey 14 Johns. 434, chancellor Kent delivered the opinion of the court of errors to the same effect, in which, with his usual ability, he took a broad view of the subject, and presented it in a most luminous manner. From an examination of the foregoing authorities, we are led to the conclusion, that the defendant’s second objection, so far as it relates to the want of mutuality of contract, cannot avail him; and we now proceed to that part of it which is founded on the change of circumstances.

In many cases it has been decided that an important change, with respect to the situation of the parties, or of the property which was the subject of the contract, furnishes a substantial objection against decreeing a specific performance, after a considerable lapse of time. Such for instance, as the increased value of the estate ; or where the property agreed to be sold was consumed by fire ; or perhaps, where the owner, supposing the contract abandoned by the purchaser, had conveyed or covenanted to convey it to another person. The defendant in his answer has alleged only one circumstance in relation to the land In question, to shew such a change in the situation of himself and the property, as ought to induce the court to dismiss the bill; which is, that on the 20th of October, 1823, he purchased at auction the other moiety of the land and buildings for the sum of $121, which he alleges is more than the just value of it, to be owned in common ; and that this moiety by him so purchased would be rendered of little value to him, if he should be compelled to reconvey the other moiety to the plaintiff. It should be noticed that this purchase was made one month after the deposit of the $159 at the bank, and the defendant’s notice of it; what he did, therefore, was done by him after he was informed of the plaintiff’s intention to redeem the moiety conveyed. Besides, he did not hesitate to receive the plaintiff’s conveyance of an undivided moiety, as security for $25ü, and surely there is just as much inconvenience ip his holding one undivided moiety, conveyed to him by the plaintiff, as the other, conveyed to him by the administrator of Ira Getchell. From these facts we are unable to perceive any essential change of circumstances, or discover how they furnish any substantial objection to a specific performance of his contract. The second objection thus failing, our opinion, is that the defendant’s answer is wholly insufficient.

It will be perceived that the court do not mean that time is not of any importance in any equitable point of view, where a claim is made for the specific performance of a contract. Our decision is placed on the peculiar circumstances of the present case, which have been particularly stated and considered in the-foregoing opinion.