Opinion
05-07-1891
SCHLOETTERER v. WAGNER.
R. S. Woodruff and James Buchanan, for complainant. James S. Aitkin, for defendant.
R. S. Woodruff and James Buchanan, for complainant.
James S. Aitkin, for defendant.
BIRD, V. C. The defendant insists that the complainant is not entitled to relief because she has been guilty of laches, and because she has voluntarily waived any right upon which such relief might otherwise have rested. The complainant's husband was in search of a place of business, and to that end inquired of the owner of the property in question respecting the rent, and afterwards respecting the price at which she would sell it. Ascertaining the selling price, but having no means with which to buy, the husband of the complainant went to the defendant, with whom he was on very friendly terms, and, after some negotiations, came to an understanding with the defendant that he should take the title to the property in his own name, and hold the title until such reasonable time as the husband of the complainant could pay him the amount of such purchase price; the time agreed upon being two years, and the consideration being $2,800. The husband of the complainant then went to the agent of the owner, and arranged with him to prepare a deed from the owner to Mr. Wagner, and also an agreement between Mr. Wagner and the husband of the complainant, in and by which agreement it was provided that Wagner should hold the title to the property for two years from that date, at the expiration of which time Wagner was to convey it to the husband of the complainant. On the 3d day of February, 1885, the agent met Schloetterer and Wagner at Wagner's place of business. The agent had the deed for the conveyance of the property to Wagner executed and acknowledged, and the articles of agreement by which, when signed, Wagner was to convey the property to Schloetterer. Upon the deliveryof the deed to Warner, he executed the agreement. When the agreement was read, it purported to be between Wagner, upon the one part, and Schloetterer, the husband of the complainant, of the other part. Schloetterer said it was a mistake to use his name,—his wile's name should have been inserted instead of his: and accordingly his wife's name was inserted. But, while this is so, all of the business was conducted by Schloetterer himself; and it is admitted that under the circumstances of this case the complainant acquires no advantage from the fact that the agreement for the title was in her name, or from the fact that any of the transactions referred to were carried on by her husband in her absence, or without her knowledge. At or about the time of the execution of these papers it was distinctly understood that Schloetterer should enter into possession of the premises, and should occupy them, and that he should pay Wagner therefor $168 a year. It may be that there is some uncertainty, according to the testimony, as to the exact amount which he was to pay. It also may be somewhat uncertain whether the understanding between Schloetterer and Wagner was that he was in possession as tenant, and was to pay rent, or whether he was in possession under the agreement to purchase, and should indemnify Wagner against all loss as to interest, taxes, and insurance. But, whatever may have been the language of the parties, I can have no doubt but that the intention was that Wagner should convey the title to the complainant at the expiration of the two years, and that in the mean time he should be protected against all loss. Indeed, his own testimony seems to me to make this clear beyond any doubt whatever.
At the expiration of the two years, Wagner did not make and deliver, or offer to deliver, a deed to Mrs. Schloetterer for the title. He did not do this because, before the expiration of the two years, Schloetterer told him he was unable to comply with the conditions of the agreement, and asked for an extension of time for three years. Wagner says that he agreed to extend the time for two years. At or about the expiration of the said two years, Schloetterer asked for further time. Wagner says that he refused to give him further time. Wagner claims that by this refusal upon his part he made time an essential element of the transaction, and that the complainant lost her rights because she did not at the expiration of the said lastmentioned two years tender herself ready to comply with the term of the contract as so extended. This insistment cannot prevail. The specific performance of such contracts lies in the sound discretion of the court. It is to be understood from this that when the conduct of the party asking relief has been fair, and he comes with reasonable promptness asking the aid of the court, the court will ordinarily decree a performance. In this case Schloetterer sought the vendor, and arranged the price to be paid, gave all directions for the preparation of the deed and the articles of agreement, and procured the consent of Wagner, not so much as a purchaser, but as a friend, to take and hold the title to the property as security for his investment, in order that Schloetterer might have a place to carry on his business, out of which he expected to make money enough to pay for the property Wagner went with Schloetterer to examine the property, and told him that he agreed to give too much for it, but was informed by Schloetterer that he intended to greatly improve the property; and, when Schloetterer informed Wagner of the nature and extent of improvements he intended to make, Wagner consented to enter into the arrangement, and afterwards he did so. Schloetterer took possession of the property, and made large improvements,—hesaysof the value of $1,400. It may be that many of those improvements are not actually made a part of the freehold; but a witness called for the defendant fixes such additional value to the building itself at $600. The probabilities are that they are nearly $1,000. In making these improvements, Schloetterer used not only his own earnings, hut the separate earnings of the other members of his family. Looking, therefore, to the negotiations between the parties, and to what was said and done by them outside and independent of the conveyance and agreement, it is perfectly clear that Wagner took the title to the property to hold it in trust for Mrs. Schloetterer, and that he had no other objector purpose whatsoever in view. He knew that Schloetterer intended to make these additions and improvements, and he also knew that he intended to make them because he expected the property should be conveyed to his wife. The testimony shows that Wagner only expected to be protected against all loss, and that he was so protected, not only during the two years for which the time was extended for the performance of the contract, but afterwards; for, as I understand the testimony, Wagner continued to accept the rent or interest and other moneys to the same extent, and in the same manner, after the expiration of the said two years as he had before, never warning Schloetterer until more than a year after the expiration of the said time that he was no longer under obligations to convey said property Besides the above considerations, he never made an offer to deliver a deed for the premises to Mrs. Schloetterer, or to her husband, upon her paying the price agreed upon for the premises. Wagner insists that Schloetterer comes now, and offers to pay, and demands a specific performance, because the property in question has increased in value at least $1,500. In the first place, no such length of time has elapsed since the 3d day of February, 1889, and the filing of the bill in this cause as to make the increase in value of the property a material consideration, when we take into account all the other circumstances. In the second place, Schloetterer all the time was anxious to purchase, and that, too, irrespective of the value of the premises. He was only restrained from so doing by his inability to raise the money; and it is of great importance that this inabilitywas confessed to Wagner, and was the grounds of conveyance to him. The testimony not only shows that Schloetterer was anxious to perfect the title in himself, but that he had called upon other friends to help him, who offered to do so in the presence of Wagner, but upon such terms as to security that Wagner refused to accept. If it be said that the property has increased in value, independent of the building thereon, it must not be overlooked that the building has been improved to the extent of at least §000, and in my judgment much more. This undoubtedly presents a strong equity in favor of Schloetterer. Were Wagner to have the benefit of this, instead of his being simply indemnified against all loss, he would enjoy a bonus to the extent of nearly $1,000; making the transaction a very profitable one to himself. I cannot fail to observe, also, that while Wagner desires to rescind this contract, and to deprive Schloetterer of all benefit therefrom, he does not so much as offer to make Schloetterer whole by paying him for the improvements actually put upon the premises. The waiver relied upon is based upon an alleged agreement between Wagner and Schloetterer, by virtue of which Wagner agreed to sell to Schloetterer a portion of the premises in question, including the building, for $2,000, for which Schloetterer agreed to pay that sum. Wagner says that, when Schloetterer was pressing a settlement between them, he made this offer with the terms and conditions satisfactory to himself, and Schloetterer accepted it. Six hundred dollars was to be paid in cash, and the balance secured by bond and mortgage on the premises. Schloetterer admits the offer, but denies that he accepted, or signified a willingness to accept. As the case stands, it cannot be concluded that the parties came to a distinct understanding upon this point. Besides the denial by Schloetterer, it appears that afterwards, upon the same day or within a day or two, when a tender of the amount due Wagner, under the agreement relied upon by the complainant, was made, Wagner made no mention of this subsequent agreement which he sets up by way of defense. It is very difficult to believe that a shrewd business man would so soon have forgotten such an important matter, or, if it had really transpired, would not have at once mentioned it. I shall advise a decree in accordance with the prayer of the bill, with costs.