REED, V. C.
Suit by Philip I. Marvel against Nettie Fralinger and others. Decree for complainant.
G. A. Bourgois and Thompson & Cole, for complainant.
S. H. Grey and E. Cooper Shapley, for defendants.
REED, V. C. This bill is filed to compel the defendant Nettie Fralinger to specifically perform a contract to convey a one-fourth interest in a certain tract of land in Atlantic City. This property appears to have been owned by Nettie Fralinger, John L. Young, Stewart McShea, and the complainant, Dr. Marvel, each owning a one-fourth interest. There was a mortgage upon the property of $43,000. The alleged facts upon which the complainant's suit is based are these: Prior to August 24, 1899, there was a parol agreement betwen Dr. Marvel and the three other owners by which these three were to convey their interest to Dr. Marvel. On the evening of August 25th the parties met, confirmed the terms of sale, and Dr. Marvel gave a certified check for $10,000 as part of the consideration for the purchase. This check was dated August 24th, and was made payable to the order of Dr. Marvel himself, and was indorsed by him. A receipt was given for the check by Mr. Young, one of the owners, in which it was stated that the check was given on account of the purchase of the tea property, this being admittedly the property in question. A formal agreement in writing was later prepared by Walter McShea, a lawyer, and a son of Stewart McShea, one of the owners. This agreement was signed by Mr. Stewart McShea, by Young, and Mr. and Mrs. Fralinger, and presented to Dr. Marvel by Walter McShea. Dr. Marvel refused to accept this agreement because it recited that the consideration for the property was $200,000 and the mortgage of $43,000. Mr. Walter McShea then prepared another agreement, dated August 25, 1899, which he presented to Dr. Marvel, and which Dr. Marvel refused to accept because it recited that the consideration was $182,250 and the assumption of the mortgage of $43,000, while the real consideration for the three-fourths interest to be conveyed was $150,000, including the mortgage. Then a third agreement was prepared, which was explanatory of and supplemental to the last-named agreement. This agreement was signed by Mr. and Mrs. Fralinger in their store, in the presence of Dr. Marvel and Mr. Cole. Dr. Marvel, upon the reception by him of the explanatory agreement, accepted also the second agreement, which second agreement as already remarked, stated the consideration to be $182,250 and the assumption of the $43,000 mortgage. The explanatory agreement recites that whereas, the agreement of August 25, 1899—the second agreement, just mentioned—fixed the consideration to be paid for the interests of McShea, Young, and Fralinger by defendant at the sum of $182,250, and whereas, the said parties have given a receipt to Dr. Marvel for $32,250, which sum has not in fact been paid, but was given for services rendered, according as agreed to as a benefit to said Marvel, whereas $10,000 was paid at the time of signing the second agreement: Now, this agreement withesseth that the true consideration for the transfer of the property is the sum of $150,000, and not $182,250, as stated in said agreement, and that upon the settlement under the terms of said agreement,only the sum of $150,000, less the mortgage, is to be paid. Dr. Marvel's explanation why he accepted the second agreement with the explanatory agreement, instead of having the true consideration put in a single agreement, is this: He had entered into an agreement to sell a one-half interest in the property to a Mr. Hamburg at the rate of $243,000 for the entire interest in the property or $121,500 for one-half, and he wished it to appear that in purchasing the property he (Marvel) had paid at the same rate. His purpose in doing this, he says, was that, in case he should die before the transaction with Mr. Hamburg was consummated, the latter could not say that this agreement was to buy at the same rate that Dr. Marvel had purchased, and then rely upon the agreement for sale to Dr. Marvel as evidence that the doctor had really bought at the rate of $200,000 for the whole property, or $100,000 for a half interest. It may be remarked here that the sum of $182,250 is made up of three quarter interests at the rate of $200,000 for the entire property and three-fourths of the $43,000 mortgage, namely, $38,250.00. Dr. Marvel's claim is that the true consideration is shown by the explanatory agreement, which he says was signed by Fralinger. This agreement is not produced. Dr. Marvel explains its nonproduction by saying that after it was signed he handed it to Mr. Young, who placed it in his safe, and that subsequent search has failed to discover it. The pivotal point in the case is whether this supplementary agreement was ever signed by Mr. and Mrs. Fralinger. Dr. Marvel swears that an agreement, a copy of which is attached to the answer, and known in the case as "Exhibit 63," was signed by Mr. and Mrs. Fralinger. Xeither Mr. nor Mrs. Fralinger, the defendants, were sworn as witnesses upon the trial. There were attached to the bill, how-over, certain interrogatories propounded to them, which they have answered under oath. The answers to these interrogatories, so far as they are responsive, by the statute have the force of a sworn answer. To the interrogatory respecting the execution of the explanatory agreement styled in the interrogatories "Exhibit B" the defendants answer that they have no knowledge of its existence; that it was never seen by them, or either of them; and they aver that it was never executed. The truth of the answers to the interrogatories is sworn to "to the best of the knowledge and belief" of the affiants. The phraseology used by the affiants, it is contended, deprive their answers of the force which they would have had had they positively sworn that the explanatory agreement was never executed. It is insisted that the answers have no greater force than if they were sworn to on information and belief. The strength of the affidavit sworn to in this language must depend upon the fact which is the subject of the affidavit. Where the fact is one concerning which the affiant may have had no knowledge, the affidavit amounts to no more than one made upon belief only. Where, however, as in this case, the fact is one concerning the affiant's personal act, of which he must have had knowledge had it existed, the affidavit is an assertion under oath that the affiant, using his best recollection, is unable to recall such an occurrence. The attitude of the parties, then, is this: Dr. Marvel swears to a positive act occurring in his presence, and the defendants swear that they have no recollection of such an act, after using their best endeavors to recall it. Assuming, however, that the answer of the husband and wife has the strength of a single sworn answer, which throws upon the complainant the burden of supporting his testimony by that of another witness, or by some corroborating circumstance, the query remains whether the complainant is so supported.
That an agreement similar in language to the explanatory agreement was actually drawn, is supported by the testimony of Judge Thompson. Judge Thompson testifies that about the time mentioned he was one day about leaving his office, when Walter McShea, who was seated, trying to dictate an agreement, called to Judge Thompson, and told him what he was doing. The result was that Judge Thompson himself sat down and dictated an agreement. Upon being shown what purports to be a copy of the explanatory agreement, Judge Thompson said, "I have examined this paper, and I believe it to be the paper that I dictated at Walter McShea's suggestion to my stenographer about that time." That a paper (which paper Dr. Marvel says was the explanatory agreement) was about that time signed by Mr. and Mrs. Fralinger at their confectionary store in Atlantic City is proved beyond doubt by the testimony of Mr. Cole. He tells of Dr. Marvel's calling upon him and asking him to go with the doctor to the Fralingers to witness a paper; that a writing was produced by Dr. Marvel; that Mr. Fralinger was there, and Mrs. Fralinger was sent for, and in his (Mr. Cole's) presence and in the presence of Dr. Marvel Mr. and Mrs. Fralinger signed the paper. Was this paper the explanatory agreement which Judge Thompson dictated? Dr. Marvel says it was. No other witness supports him directly in that assertion. I think it may be assumed, however, that the paper then and there signed must have been either the second agreement of August 25th or the explanatory agreement. There is nothing to show that there was any written dealing between Dr. Marvel and the Fralingers except in connection with the sale of this property. It does not appear at what place the Fralingers signed the firstmentioned agreement. The Fralingers were asked this question in the first interrogatory propounded,which was this: "When and where and by whom Exhibit A was executed?" The defendants answer that: "Exhibit A was executed in September, 1899. as a final agreement between the parties. After execution, a copy was delivered to each party." This answer, it is perceived, leaves unanswered that part of the interrogatory which asked for information as to where it was signed, as well as by whom it was signed. If it had been signed at Fralinger's store, by the Fralingers, it is highly probable that Mr. Fralinger, at least, would have recalled that fact; and, if he had recalled it, he would naturally have insisted that the complainant and Mr. Cole had confused the execution of Exhibit A with the supposed execution of the explanatory agreement. If Exhibit A was not signed when Mr. Cole visited the Fralingers, some other agreement certainly was signed, and the strong probability is that it was the explanatory agreement.
Another circumstance may have some significance. Dr. Marvel visited the Fralingers in company with Judge Thompson on a later occasion, to make a tender to Mr. Fralinger of the amount due to Mrs. Fralinger under the terms of the explanatory agreement. He told Mr. Fralinger the purpose of this visit, and asked him to call his wife. Mr. Fralinger said that was not necessary; that he would act for her; but, upon Judge Thompson insisting, she was called, and in her presence Judge Thompson began to count out the amount due, as they supposed, under the explanatory agreement. Judge Thompson said that Mr. Fralinger remarked that he would not require the money to be counted, but would acknowledge that there was that much money there. The judge then presented a deed to be signed, and Mr. Fralinger said that he wanted to consult his solicitor, and did so over the telephone, after which he declined to sign the deed. The reason then assigned by Mr. Fralinger for his refusal was that Mr. Young, who had agreed to sell his interest in the property in concert with McShea and Fralinger, was not acting squarely with them, and did not intend to sell. Now, the amount tendered was less by several thousand dollars than the amount due under the terms of the first agreement, and no objection seems to have been raised by the Fralingers on that account. It must be admitted, however, that the force of any inference to be drawn from this fact is blunted by the consideration that Mr. Fralinger's mind, being intent upon a refusal of the tender upon the other ground, may have paid no attention to the amount.
There is another circumstance. Dr. Marvel says that the terms of the purchase were agreed upon at a meeting held on the evening of August 25th. At that meeting Fralinger was undoubtedly present with Young and McShea. At that meeting Dr. Marvel says the question of giving a receipt for the $32,250 part of the consideration of $182,250, was discussed, and some one (he thinks Fralinger) was opposed to giving a receipt for money that was not paid. It was at this meeting that the check for $10,000 in part payment of the three interests of the three vendors was handed to Mr. Young, for which Mr. Young at that time gave a receipt dated August 25th. This receipt states for what the check was given; that it was given in consideration for part payment of this property, the full amount, including the mortgage to be $200,000. This meant undoubtedly that the property was sold upon that basis for the whole interest. It was undoubtedly understood that Mr. Young received this check for himself and the three other selling owners. He had the check cashed or placed on deposit to his credit, and he paid McShea and Fralinger each one-third of its amount. He gave tin's receipt and memorandum as a part of the transaction which occurred on the evening of August 25th, and I have no doubt it represents the general understanding of the parties at that time. Mr. McShea conveyed his one-fourth interest for the consideration mentioned. While this receipt would not control the terms of a different subsequent agreement, it is significant upon the question whether Fralinger would be likely to execute the explanatory agreement, which alone created a written contract in accordance with the terms of the receipt. I am of the opinion that all the circumstances support the positive testimony of Dr. Marvel that such an agreement was signed, and overcome the negative testimony of the defendants in the sworn answers to the interrogatories.
I will advise a decree that the Fralingers specifically perform the contract as its terms appear in the two mentioned agreements.