Warren v. Hall

48 N.Y. Sup. Ct. 466, 4 N.Y. St. Rep. 48

• Court: New York Supreme Court
• Decided: October 15, 1886
• Status: Published

Opinions

Daniels, J.:

The contract, for the specific performance of which this action was brought, by its language, obligated the defendants to convey to the plaintiff the property referred to in it, by a deed containing a general warranty and the usual covenants for the conveying and assuring to him the fee simple of the premises, free from all incumbrance. Before the time when it was made, and also when it was to be carried into effect, a sewer had been laid through a portion of the premises, which the city of Newport had the right to maintain and keep in repair, and for that defect in the title the plaintiff was allowed compensation by the judgment which, in addition to decreeing its payment, directed a conveyance to him of the premises.

Upon the trial of the action the defendants proposed to prove the plaintiff’s knowledge that the sewer ran through this property prior to the execution of this contract, and to follow it up by showing that the contract itself was prepared by his attorney, who had searched the title and knew of the existence of the sewer. This was objected to by the plaintiff’s counsel and excluded by the court, and to that ruling the defendants’ counsel excepted. No objection was taken to the insufficiency of the offer in any respect, but the only objection previously made to that description of proof was, that the preceding conversations and negotiations had become merged in the written agreement, and it was probably in that view that this evidence was excluded by the court. But as this action was for the specific performance of the agreement, the defendants had the right to prove any facts within the issue, rendering the claim by the plaintiff for compensation an inequitable one. For the rule is well settled in actions of this description, where the claim made for relief is unfair, inequitable or unjust, that the court will not decree a specific performance which may be attended with that effect. If this evidence had been received, and it is to be assumed for the present disposition of the case that the defendants could have proved their offer, then it would have established the fact that the plaintiff and his attorney, understanding the existence of this sewer in the property, and that it was the purpose of the defendants to convey it in the condition in which it was, prepared the contract and obtained its execution in such form as to impose the obligation hy its language upon the defendants, to convey the premises in the same manner as though the sewer itself had no existence. And that would result in taking an unfair advantage of the defendants, if in fact the plaintiff and his attorney were aware of the existence of the sewer. It would be an imposition upon the defendants to prepare and obtain the contract as they did, without apprising them of the fact that it had been so drawn as to obligate them to convey the property free from the incumbrance of the easement. It would likewise be of the same character, if the understanding between the parties was that the plaintiff should receive the conveyance of the property, subject to this servitude. In either case the transaction would appear not to have been fairly conducted. For if the plaintiff and his attorney knew of the existence of the sewer in the land, that knowledge required that some explanation or provision for the protection of the rights and obligations of the parties growing out of it should have been given place in the agreement. That was not done, but the contract was taken from the defendants. without any reference whatever being made to this sewer, or to the formal obligation declared by the contract to protect the plaintiff against it.

It may be that the conduct of the plaintiff and his attorney was entirely free from all criticism, and that it will be so made to appear upon a further consideration of the case. But as it has now been presented that cannot be assumed, but the court is required to infer from the offer, that knowing of the existence of the sewer, the attorney or counsel for the plaintiff prepared the contract without any reference to it, or exception made concerning it, binding the defendants to execute and deliver such a deed as they were incapable of giving because of the existence of the sewer.

In actions for the specific performance of contracts for the conveyance of real estate, it has been the constant practice of courts of equity to receive proof establishing the fact that the decree applied for would be unjust or inequitable, by reason of any material mistake, misapprehension or imposition upon the party proceeded against. (3 Greenl. on Ev. [15th ed.], § 361.)

It has been urged, in support of the ruling made at the trial, that if the proof had been received as it was offered, it would not have shown such knowledge on the part of the plaintiff or his attorney as would charge either with information as to the legality of the easement itself; and the case of Riggs v. Pursell (74 N. Y., 370) has been cited as an authority sustaining this position. But that case very materially differs from this in its principle. There the only fact subject to observation indicating any restriction upon the right of the owner to use and improve the property, was the manner in which the building itself had been erected. And from that it could not naturally have been inferred that it was in this condition by reason of any legal restriction upon the right of the owner. While if the plaintiff was aware of the fact that the sewer existed in and passed through this property, and his attorney had discovered it in searching the title, it might be inferred that it was there by some right existing on the. part of the city to place and maintain it there. Certainly the offer was not so deficient in this respect as to justify the court in excluding the evidence for any reason of this character. Neither could it be excluded under the rule rejecting oral evidence offered to explain, qualify or add to a written instrument. Bor while it is true that this rule is observed in courts of equity as it is in courts of law (Hunt v. Rousmanier, 8 Wheat., 174, 211; Brainerd v. Brainerd, 15 Conn., 575, 585; 3 Greenl. on Ev. [15th ed.], § 366), the courts have in actions for the specific performance of contracts allowed the parties resisting the suit to prove, by oral evidence, that the contract had been entered into by mistake, or that an unfair or improper advantage had been taken by the plaintiff in obtaining it, as facts proper to be considered, to influence the discretion of the court and qualify the right to relief. This evidence, under the principle already mentioned, should have beenreceived. But it was not. Neither was any evidence afterwards received upon the trial equivalent to this rejected offer of proof.

If the facts had been proved they would have been entitled to the consideration of the court upon the right of the plaintiff to the compensation allowed by the judgment for the existence of this sewer. And because of the exclusion of the evidence the judgment should be reversed and a new trial ordered, with costs to abide the event.