King v. Ruckman

20 N.J. Eq. 316

• Court: New Jersey Court of Chancery
• Decided: October 15, 1869
• Status: Published

Opinion

The Chancellor.

The determination of both causes depends upon the same questions of law and fact. If King is not entitled to a specific performance of the contract, Ruckman is entitled to have it rescinded and declared void. Counsel, therefore, with great propriety, agreed to have them argued and determined together, upon the same evidence, as if one suit.

By a written contract, under seal, executed by both, made on the 12th day of May, 1868, Ruckman agreed to sell to King a number of tracts of land, in the county of Bergen, and in Rockland county, in the state of New York, describing them as all the lands he owned and held contracts for, in the township of Harrington, east of the old Oloster road, and between the Alpine road and the north line of New Jersey; also all his land between the Huyler landing road and the old Oloster dock road; also all his land in Rockland county east of the old Oloster rpad; “and also two lots of land situate in Hackensack township, in the county of Bergen the whole of the premises containing about two thousand acres, portion of the above bounded by the Hudson river. The price was to be $275 per acre, which King agreed to pay as follows: $100 at the execution of the contract; $19,900 in cash on June 1st, 1868; $80,000 in cash on July 1st, 1868, on delivery of the deed; and the balance to he secured by mortgage, to be paid at times and in instalments specified.

Ruckman agreed, “on receiving such payments and such mortgage at the time and in the manner above mentioned,” to execute and deliver, at his own expense, to King a proper deed, with full covenants, to convoy the premises in fee, free from encumbrance. The deed was to he delivered at the office of G. H. Yoorhis, in Jersey City, July 1st, 1868; and the contract provided, that if either party should fail to comply, he should forfeit -and pay to the other the sum of 820,000.

At the drawing of the agreement, Ruckman wanted the $20,000 to be paid, so as to enable him to perform his contracts for the purchase of lands mentioned in the agreement, and while it was being drawn they had considerable discussion about it. Ruckman wanted it fixed for May 22d. King did not want it included in the written contract, which he wished to be for payment of $99,900, on the 1st of July, and that Euckman should take his word for the payment of the $19,900 before that time; he said he would pay it in a few days. Euckman refused to accede to this, but gave to the 1st of June for the payment, and insisted upon that being stipulated in the contract, as it was afterwards written.

On the 28th of May, King applied to Euckman for an extension of the time of payment of the $19,900 to June 15th, and presented to him for signature a written agreement to that effect, endorsed on the duplicate of the contract taken by King. This Euckman, decidedly and with violent language, refused to do, and told King that he would hold him to strict payment on that day. Euckman states that he also told King that he would stay at his own house all day to receive it. King states that Euckman fold him to be at the office of Yoorhis to pay it, and that he would be there to receive it. King, accompanied by a man whose name he does not disclose, and which he says he does not recollect, but whom he describes as an old patient, came to the office of Yoorhis on the 1st day of June, and produced $19,900, which he counted out before Yoorhis. He inquired for Euckman, and said that he came there with the money for the purpose'of making the payment to Euckman. Yoorhis had no authority to receive it, and he did not offer it to Yoorhis. King asked Yoorhis if Euckman would be there. Yoorhis.told him that he would not be there; that he had. seen Euckman a day or two before, and told him, in answer to an inquiry, that as the contract was silent as to the place of payment, it was payable at Euckman’s house, and that Euckman said he would remain home all .day to receive it. King contended that the money was payable at the office of Yoorhis, because the deed was to be delivered there. Yoorhis told him that it was not, and advised him if he wanted to make a valid tender to go to Euokman’s house, which could be easily reached by a train which would leave at twenty minutes past one, and from which he could return that afternoon. King declined to do this. It was then half past twelve o’clock. King did not say to Yoorhis that Kuckman had promised to meet him there. No further tender of the $19,900 was made. Kuckman testifies that on the morning of the 2d of June, about seven or eight o’clock, he left at King’s house, No. 2 Grove street, New York, with a servant girl, a note, stating that as King had failed in his payment, the contract was at an end. This note King says he did not receive, but does not produce the servant girl, who still lives with him, to explain the matter or deny it. King was in the house at that time. On the same morning he went to the Bergen county clerk’s office, and had the contract recorded, although he had agreed that he would not have it recorded until after the second payment was made. On the 3d of June, King met and spoke to Kuckman, both in the train and at Kuckman’s house. Kuckman, at both times, was in company with II. O. Adams, who, with his son, P. O. Adams, are now concerned with King to the extent of one fifth each in the contract in controversy. P. O. Adams was then concerned and furnished the money with which the second and third payments ai'e claimed to have been tendered. II. O. Adams and Kuckman were then, as Kuckman testifies, bargaining about this property, Kuckman considering that this contract was at an end, and not knowing that Adams or his son had an interest in it. He testifies that he told H. O. Adams so in the car in presence of King, who said he did not consider it was at an end, and that nothing else was said between them on that day about this contract. King on that day called at Kuckman’s house, while he and his family and Adams were at dinner. King was asked to dinner, but declined, as he had already dined; Kuckman says that he asked him; King says Kuckman’s wife asked him. King says that he asked Kuckman on that day, in the railroad car, why he did not come to the office of Yoorhis according to agreement, to receive the money; that Kuckman replied he (King) was a swindler and had no money, and used profane language and opprobrious epithets; that he then offered Kuckman that if he would go back to New York with him he would pay him the money. King says he did not see Buckman between June 4th and July 1st. Buckman says he saw King on June 16th, on the platform at the railroad depot, on his return-from the county clerk’s office, where he had just ascertained that King had, on June 2d, recorded the contract, and he then refused to shake hands with King, who stretched out his hand, called him a swindling blackguard, and asked him why he had put the contract on record. In their statements of what took place in the car on June 4th, Buckman and King essentially differ. H. C. Adams, a friend of King, and jointly interested with him in this transaction, was present, seated directly in front of Buckman and conversing with him. Language of the kind which King states Buckman used, is not generally said in a mild, low tone, and Adams must have heard, and could not have forgotten it. King could have produced Adams to corroborate his statement, if he relies on it to support his case. And it is very strange that after such language from Buck-man, King should have gone to his house uninvited on the same day, when he had no business to call .him there, and enter the room where Buckman was at dinner with his family and with Adams. I think King, as to this, must be mistaken, and has transferred the language of the interview on June 16th,-which he seems to have forgotten, to that of June 4th.

On the 1st of July King went to the office of Mr. Yoorhis, accompanied by P. O. Adams and Mr. Bergholz, two persons interested with him in this contract, and by two counselors-at-law, and with $99,900, to make the tender and - demand the deed. Buckman was not there, nor did he go to that office on that day. But at four o’clock all five went to the depot of the Northern railroad, where they found Buckman seated in a car, on his way home, and tendered him the money, which he refused to receive, accompanying the refusal with profane and opprobrious language. Buckman considered the contract void, on account of the failure of King to comply with its terms in making the second payment. King contends that he made the tender of the second payment in compliance with the terms of the contract, and the arrangement made between him and Ruckman; and that even if he did not, in this case time is riot of the essence of the contract, and that the court will enforce it, upon his complying with the substantial terms required by it.

There are two questions on the performance: one a question of law, whether, in this case, time was of the essence of the contract; the other a question of fact, whether the office of Voorhis was agreed upon as the place for the second payment. There is also a question of law upon the contract, whether it is sufficiently certain and definite for a court of equity to enforce.

The established doctrine of equity is, that in general time .is not of the essence of a contract for the sale of lands. But it is now also settled that in such contracts time may become of the essence of the contract, either by being made so by the contract itself, or from the nature and situation of the subject matter of the contract, or by express notice given, requiring the contract to be closed or rescinded at a stated time, which must be a reasonable time, according to the circumstances of the case.

It was at first held by the English courts of equity that in such contracts time could not be made of the essence of the contract, and that such agreement would not be enforced, any more than an agreement to limit the right of redemption by a mortgagor.

Lord Thurlow, in Williams v. Bonham, 1 Sug. on Ven. 303, where the contract was that if the title should not be made out in three years the agreement should be void, held that the time fixed was only formal, and not of the essence of the agreement.

In Gregson v. Riddle, (stated in 7 Ves. 268, in Sir S. Romilly’s argument,) Lord Loughborough, as commissioner of the great seal, and afterwards Lord Thurlow, as Chancellor, held that a stipulation that the agreement should be void if the title was not completed at a given day, was of no validity. And, in answer to a proposition of Mr. Mansfield, that it would ■be necessary to insert a provision that it should be void, notwithstanding the decision of the Court of Chancery, Lord. Thurlow -replied, “ that the parties would be just as forward as they -were then.” Lord Thurlow, without doubt, entertained the idea that equity would not allow the parties to make time the essence of such contract. But -he was the only English Chancellor -who adhered to that doctrine. Lord Loughborough, who had countenanced it, afterwards, in his decisions, held the contrary. In Lloyd v. Collett, 4 Bro. C. C. 469, he says : “ There is nothing of more importance than that the ordinary contracts between man and man should be certain and fixed, and that it should be certainly known when a ma-n is bound and when he is not. It is one thing to say the time is not so essential that in no case in w'hich the day has, by any means, been suffered to elapse, the court would relieve against it and decree performance. The conduct of the parties, inevitable accident, &c., might induce the court to relieve. But it is a different thing to say that the appointment of á day is to have no effect at all, and that it is not in the power of the parties to contract that if the agreement is not executed at a particular time, the parties shall be at liberty to rescind it.”

Lord Eldon, in 1802, in Seton v. Slade, 7 Ves. 270, said: “ I am inclined much to think, notwithstanding what was said in Gregson v. Biddle, that time may be made the essence of a contract.” This continued to be his settled opinion, as is shown in Levy v. Lindo, 3 Mer. 81; Boehm v. Wood, 1 J. & W. 419, and Withy v. Cottle, Turn. & Russ. 78.

In Eaton v. Lyon, 3 Ves. 692, in 1798, the master of the rolls said: “ The doctrine has been formerly carried to a length that became, in some degree, alarming, but undoubtedly in modern times that has been much restrained. If in the purchase of an estate, money has been covenanted -to be •paid at -a given day, if it is not paid at that day, at law no action will lie, but if the party can show that he took the .means of paying it, and has been prevented by accidents not-in his power, the court will dispense with the strict performance of it; because, as it was formerly said, time is not of the essence of the contract; but it may be of the essence of the contract.”

In Hudson v. Bartram, 3 Madd. 447, Sir John Leach says: “ Although it was for a long time doubted whether time could be made of the essence of a contract, yet that point has been settled by Lord Eldon. Here, as at law, it may be of the essence of the contract.”

In Hipwell v. Knight, 1 Y. & Coll. Ex. 401, Baron Alder-son, in delivering the opinion of the court, holds that time may be made the essence of a contract to convey, and that in the case before the court it was made so; and he relies upon the fact that the agreement in that case was changed from three to four months as originally drawn, to show that time was intended to be of the essence of the contract. The Vice Chancellor of England, in the case of Lloyd v. Rippingale, referred to in the argument of Hipwell v. Knight, 1 Y. & C., Ex. 410, held that express words would make it so. Sir J. Romilly, M. R., in Honeyman v. Marryat, 21 Beav. 14, held that time might be made the essence of a contract. And again, in Parkin v. Thorold, 16 Beav. 65, he says: “ Although the dictum of Lord Thurlow, that time could not be made of the essence of the contract in equity, has long been exploded, yet time is held to be of the essence of the contract in equity, only in cases of direct stipulation, or of necessary implication. The cases of direct stipulation are when the parties introduce a clause expressly stating that time is to be of the essence of the contract. The implication is derived from the circumstances of the case, such as where the property is required for some immediate purpose, such as trade or manufacture.” Lord Cranworth, when Vice Chancellor, in Parker v. Thorold, 2 Sim. N. S. 1, held that when a purchaser has agreed that he will take a title if made at a given day, but otherwise that he will not; a court of equity cannot, any more than a court of law, give relief to a vendor who has failed to make a title at the day specified, and says: "Lord Thurlow’s dictum, that a purchaser could not so stipulate, manifestly rests on no principle,, and has often been repudiated as not truly expressing the doctrine of this court.”

The same doctrine has been adopted and repeatedly applied in the courts of this country. Benedict v. Lynch, 1 Johns C. R. 370; Wells v. Smith, 7 Paige 22; Mitchell v. Wilson 4 Edw. C. R. 697 : Longworth v. Taylor, 1 McLean 399; S. C., 14 Pet. 173.

In the last case, Justice Story, in delivering the opinion of the court, says : “ In the first place, there is no doubt that time may be of the essence of a contract on the sale of property. It may be so by the express stipulation of the parties, or it may arise by implication from the very nature of the property or the avowed objects of the seller or the purchaser.”

I concur in the conclusion arrived at by Sir Edward Sugden, in his valuable treatise, p. 305, as the result of the decisions : “ If it clearly appear to be the intention of the parties to an agreement that time shall be deemed of the essence' of the contract, it must be so considered in equity.”" Mr. Ery, in his treatise on Specific Performance, has arrived at the same conclusion, §§ 711, 712, and 713.

. A time stipulated in an agreement for performance will beheld of the essence, when from the nature of the subject-matter or the object of the parties, the time of performance was intended to be such. Hipwell v. Knight, 1 Coll. Ex. 416; Levy v. Lindo, 3 Mer. 81; Coslake v. Till, 1 Y. & Russ. 376; Withy v. Cottle, Turn & Russ. 78; Walker v. Jeffreys, 1 Hare 341; Wright v. Howard, 1 Sim. & Stu. 190; McKay v. Carrington, 1 McLean 50; Holt v. Rogers, 8 Pet. 420; Young's Adm’r v. Rathbone, 1 C. E. Green 224; Fry. on Spec. Perf., § 713 to 717.

A party will be allowed to show, by parol, that at making, of the contract time was considered as of the essence. Nokes v. Ld. Kilmorny, 1 De Gex & Sm. 440. And a new agreement extending the time is evidence that they consider the time material. Wiswall v. McGown, 2 Barb. S. C. 270.

I do not think that the provision contained in the stipulation in the contract on the part of Euckman, which is, that upon receiving such payments and such mortgage, at the time and in the manner above mentioned, lie will convey, is sufficient of itself to make the time of the essence of the contract ; the words, to have that effect, must be clearly indicative of the intention of the parties. But these words, connected with the negotiation and statements at the time of the contract, are sufficient, in my opinion, to make the time of the essence of this contract, and do make it so. Euckman, at the drawing of the contract, expressly told King that he wanted the $19,900 to enable him to fulfill his contracts for purchase, which were part of the subject matter of the agreement. The time of the payment was changed from May 22d to June 1st, at King’s solicitation, and Euckman resisted all entreaties to put it off, or to accept King’s verbal promise instead of the written stipulation. The words of the contract, with these facts, create, in my view, an express stipulation that time is of the essence of the contract. The application for the written extension on the 25th of May, and the tender, or coming ready to tender, the payment at Voorhis’ office on the very day, is evidence that King so understood the contract. Again : the subject matter of the contract and the situation of it, make time the essence of this contract. The subject matter was not a dwelling-house, or a manufactory, or a place for trade, or a reversion, which, among others, are held to make time essential, but it was a large number of tracts held and bought for sale, at a period when the prices of lands were high and their stability could not be relied on; this, of itself, is sufficient to make the stipulation as to time material, and therefore essential. Part of these lands depended on contracts for purchase made by Ruekman. A rise in price might induce those who had sold to him to evade their contracts, if not legally binding, or litigate and delay the fulfillment of such as were legal. And, more than all, money was to be paid on these contracts, and the sum to be paid on the 1st of June was relied on for that purpose. Ruckman had a right to rely on it. And the fact that he did só, or stated that he did so, at the making of this contract, of itself would make time of the essence of the contract from the subject matter, without any agreement on the subject. And, in such case, as to the point whether time is of the essence of the contract when made, it ■ is perfectly immaterial whether he actually needed the money, or whether he suffered any loss by the want of it. Where the subject is a dwelling-house, or manufactory, or a reversion, time is material, without regard to the question whether any loss or inconvenience is produced by delay.

In this case, nothing has been done by Ruckman to continue the contract; he has entered into no new negotiation with King. On the 28th of May, he told him he would insist upon payment at the time; on June 2d, he left a notice at King’s house; on the 4th of June, he told him the contract was void, and, according to King’s testimony, abused him violently, and in his presence proceeded to negotiate a sale with another purchaser. , ■

The next question is that of fact: whether King made the tender required by the contract. The effect of the contract required King to pay the money to Ruckman, and to find him for the purpose of payment, or use reasonable diligence to find him. That is usually held to be accomplished by going to the place of business or to the residence of the payee; but if the parties have agreed upon another place, the place agreed upon would be the proper place to offer the payment. And this places the whole question upon the fact whether Ruckman agreed to meet King at Voorhis’ office, and told him to be there to make the payment. Ruckman and King differ in their testimony as to this point. The burden of proof is upon King, and in this situation he would fail; but he has brought witnesses to impeach the character of Ruck-man for truth and veracity, and, if successful in this, his testimony would prevail, as nothing is shown against his own character. But the greatest portion of the testimony for King on this point is such as cannot be regarded. It is evidently founded upon the fact that Buckman has been guilty of very improper conduct with regard to tho cattle of his neighbors, is a troublesome, litigious man, and has made himself unpopular and odious in the neighborhood. Some of the fairest and most respectable witnesses are influenced by the fact that he was fined and judged in contempt by the Circuit Court for offering to treat the jury, in a case’of his own, with oysters; and most of the witnesses against his character are persons who have been engaged in litigation with him. Such witnesses are necessarily produced when they alone know or witnessed facts required to be proved; but when selected to give character to a witness, are not of much value. The only testimony allowed in such case is as lo tho general' reputation of the witness impeached, in the neighborhood, for truth and veracity, and that such reputation is generally bad; saying that the witness, from what he knew of his reputation, would not believe him under oath, is not sufficient. I do not think that the testimony on the part of King shows that Buckman has a general reputation in his neighborhood as a man of untruth or an habitual liar, The evidence is abundant to show that he is a litigious, cross-grained, troublesome, and unjust man. The number of witnesses to sustain his character would be sufficient to neutralize the testimony against him, even if more directly on the point of his character for veracity. If they speak the truth, such character could not have been general.

But laying out of question the testimony of Buckman, the evidence of Emma Hopping sustains the position taken by him. She swears expressly that when King and Beck-man parted on the evening of May 28th, Buckman told King that he would remaiu at home all day to receive this payment. It is true that she is a sister of Buckman’s wife, and may be biased by her connection with him, but this alone should not affect her credibility, as against King swearing directly for himself in his own case. Her testimony is in no way contradicted by a third witness; her character is on a par with King’s, for nothing has been stated against it except insinuations volunteered by counsel. No court or jury should disregard her testimony without some sufficient reason ; but the statute provides that the interest of a party when sworn for himself, shall be considered as affecting his credit.

But the facts testified to by Mr. Voorhis, as to the transaction of the 1st of June, materially affect this question. He says that King contended that the money should be paid at his office, because the deed was to be delivered there, and although he told him that Ruckman’s house was the proper place for the payment, and that Ruckman said he would stay there for the purpose, King did not mention that Ruckman had appointed that as the place. This silence, four days-after' he met Ruckman, is in my mind a strong support of the evidence of Emma Hopping. I shall place full confidence in the testimony of .Voorhis on this point, and in all matters in this cause. He is, and has been for years, a counselor of this court in good standing; nothing is shown against his character, and I have a right to assume that nothing exists against it; he is contradicted by no one but King; he has no interest in or connection with the cause; there is nothing against him except the railing which counsel, in their zeal for their clients, have inserted as argument in the briefs submitted. These cannot in any way affect him before the court, and if such a witness is not entitled to credit, it is difficult to determine whom to believe.

King being positively contradicted in material parts of his testimony by both Voorhis and Emma Hopping, is himself seriously affected as to his credibility.

By the weight of evidence, I feel bound to believe that Ruckman did not make an agreement with King to meet him at the office of Voorhis, but told him that he would remain home to receive the payment. If there were no agreement, King was bound to seek Ruckman to make the payment, and the burden is on him to show that Ruckman agreed to meet him at a certain place.

On this view there is no mistake or inevitable accident to excúse King. If he thought at first that the office of Yoorhis was the legal place, or that Ruckman -meant to meet him there, that mistake was corrected by Yoorhis in time for him to go to Ruckman’s house and make the payment. From his conduct on that day and afterwards, in not making any tender or proffering himself ready to perform the contract, or giving notice that he would insist upon it, Ruckman had a right to infer that he intended to abandon it, and not exert himself to be ready with the title and conveyance on July 1st. And I think such inference is fairly to be drawn by this court in disposing of the cause. These reasons are, in my opinion, sufficient to defeat King’s right to a specific performance.

There is another ground taken, that the land to be conveyed is not designated in the contract with sufficient certainty. As to the parts in Harrington township and the county of Rockland, the description is sufficiently certain. It is all the lands owned by Ruckman, or for which he held contracts, within certain boundaries. The maxim is id cerium est quod eertum reddi potest. It can be shown with certainty what lands he owned or held contracts for in those boundaries.

But the last clause seems uncertain. It is simply, “ also two lots of land in Hackensack township, county of Bergen.” It does not describe them as two lots owned by him, for then if he owned only two lots there it might be rendered certain. This contract would be complied with by his conveying two lots of ten feet square, or two lots containing one thousand acres. Hor can this part be rejected as immaterial, and performance be ordered of the residue, upon compensation. What the lots were, and what the compensation would be, must in that case be ascertained by parol, in face of the statute of frauds. If the two lots were one thousand acres of salt meadow, worth $25 an acre, the compensation to Buckman would be large — $250,000. If they were each fifty acres, fronting on the Hudson, worth $2275 per acre, the compensation to King would be $200,000. Either of these suppositions is possible, and it seems to me that this is an uncertainty which must prevent a court of equity from granting relief to King.

I am of opinion that the bill of King must be dismissed with costs, and that Buckman is entitled to have the contract declared void and given up to be canceled.