PITNEY, V. C.
Bill by E. Raymond Perrine, administrator with the will annexed of Rachel A. Bishop, against Thomas J. Toole for specific performance. James F. Gannon, as such administrator, was afterwards substituted as plaintiff. Decree for plaintiff.
Edward E. Maxson, for complainant.
Alexander C. Young, for defendant.
PITNEY, V. C. The object of this bill is to obtain a decree for the specific performance of a contract between the parties for the sale of certain chattels, the complainant agreeing to sell and the defendant to purchase the same at a fixed price, viz. $1,100. There is no dispute as to the contract having been made, nor as to its subject-matter or terms. The defense is that the complainant failed to fulfill a condition precedent, whereby the defendant was discharged from his obligation. The facts are these: The testatrix, Mrs. Bishop, in her lifetime was the owner of a building, machinery, and plant situate on the northwest corner of Seventeenth street and Jersey avenue in Jersey City, where she carried on a business in the nature of a manufacturing business.
and to have advised the administrator to pay the amount to Mr. Traphagen. That was determined, upon a consultation between them, on the 12th of July. While the administrator and Mr. Maxson were talking upon this subject, Mr. Toole came in, and the administrator then said to him, "We are now ready to give you the lease and close the transaction," whereupon Mr. Toole said, "I have made other arrangements, and don't want the property, and won't take it." The defendant swears that he had, prior to the 12th of July, made arrangements to sell the bedding which he had contracted to take from the steamship company to another party, so that he did not need the plant for the purpose of working the bedding up, and he went to Maxson's office on the 12th of July for the purpose of giving him notice that he would not take it; and he frankly stated on the stand that the reason he did not take it was that he had made a more satisfactory arrangement for the disposition of his material. The question presented by the ease is whether or not, under these circumstances, the complainant is entitled to relief.
The contract gave the defendant credit for a year for $1,000 of the $1,100 consideration money. The bill was filed on the 7th of August, 1894, and the complainant demands the delivery of the promissory notes and chattel mortgage, together with the $100 purchase money. The one year having expired after the cause was tried, but before the court had time to consider it, the prayer is substantially that he have the $100 purchase money in Mr. Young's hands, and that the defendant be decreed to pay him $1,000, with interest from July 2, 1895, and that he have a lien upon the plant for that sum. It was proven that the lease never had been procured, and further that the administrator never had been turned out of possession, and that the whole plant remained in the same situation it was in when the defendant left it, except, perhaps, as to the horses and trucks, as to which no proof was given. I think the complainant is entitled to relief. It does not appear that he was aware of the arrears of taxes when he entered into this contract, and, so far as appears, he first learned it on his application to Mr. Traphagen, on the 29th of June, for the lease to be made for the benefit of Mr. Toole. It was eminently proper that he should, before paying Mr. Traphagen's demand, submit it to his counsel. It was a proper case for investigation before payment, and it was not unreasonable, so long as he had the possession of the premises, and could give Mr. Toole the full present benefit of his contract, to ask Mr. Toole to give him an opportunity to examine into the merit of Mr. Traphagen's claim. And it is, as before remarked, quite evident that the defendant assented to that request, entered on the possession and use of the plant on the 2d of July, had full beneficial use of it until the 12th, and later; that in the meantime the administrator was reasonably diligent in ascertaining the merit of Mr. Traphagen's claim, and tendered himself ready and willing to procure the lease according to his agreement. That he could have done so there is no question. And, under the circumstances, he was entitled to the $100 down payment from the defendant for the purpose of assisting him in paying those back taxes. The defendant, having failed to require a strict performance of the contract to procure the lease, and having refused to perform on the ground that he could make a better arrangement for the disposition of his material, is not in a position to say that complainant was not ready to perform on the 12th of July. It does not lie now in his mouth to say, "You did not actually pay the taxes, nor actually procure the lease." Under the circumstances, in order to put the complainant in default, defendant should have offered to pay the money and deliver the notes if complainant would deliver the lease. I am satisfied from the evidence that the offer by the administrator to procure the lease on the 12th of July was made before the defendant expressed a determination not to take it, and that he, at the time he expressed such determination, had no reason to believe that he could not have had the lease if he had been willing to fulfill his part of the contract. In other words, that whatever of actual failure there was to procure the lease had no influence upon the defendant's conduct. If the lease had been ready on the 12th of July, and tendered to him, his conduct would have been the same. He refused, not because he did not get the lease, but because he did not wish to fulfill his contract. No doubt he thought that, as the lease was not delivered on the 2d of July, he was free from his contract; but in that he was mistaken, because he had, in substance and effect, waived the immediate performance of the contract in that respect by the complainant, and had given the complainant a reasonable time in which to procure the lease. The mere fact that after the defendant had notified complainant that he would not take the property the complainant did not, before filing his bill, actually procure a lease from Traphagen to the defendant, seems to me not to stand in the way of the complainant's right to relief. It would have been idle for him to do so, and, in point of fact, impracticable for him to do so, without the concurrent action of the defendant, for, as I have already stated, the bargain was, in effect, simply that the defendant should be substituted in the complainant's place as lessee of Traphagen, and that could not be done without the concurrence of the defendant it was a contract that required the co-operation of three parties, viz. Traphagen on one side, defendant on the other, and the acquiescence of the complainant. The result is that it is altogether the fault of the defendant that he was not put in possession of the premises as tenant of Traphagen,and he cannot set up as a defense in this case the fact that no lease was actually procured. I will advise relief to the complainant on the following terms: Complainant to pay all arrears of rent and taxes, etc., up to the 1st of July, 1894; and, if he has in fact paid anything more than that, he is to be repaid by the defendant. Defendant to pay the rent and taxes since July 1, 1894, and the whole $1,100, with interest on $100 from July 12, 1894, and on $1,000 from July 2, 1895, besides costs.