Opinion
02-16-1901
BANKS v. WEAVER et al.
William C. French and George A Vroom, for complainant. William T. Boyle, for defendant Rising Sun Lodge of Colored Masons. Frank C. Meeteer and H. A. Drake, for defendant Angus Weaver.
(Syllabus by the Court.)
Action by Lewis E. W. Banks against Angus Weaver and the Rising Sun Lodge of Colored Masons. Bill dismissed.
William C. French and George A Vroom, for complainant.
William T. Boyle, for defendant Rising Sun Lodge of Colored Masons. Frank C. Meeteer and H. A. Drake, for defendant Angus Weaver.
GREY, V. C. (orally). The defendants counsel need not reply, as my first impression of this case received from the testimony offered on the part of the complainant has not been changed by careful consideration of the argument of the complainant's counsel. I am satisfied that the relief sought ought not to be given, and that the case should be disposed of at this hearing. The bill was filed August 23, 1900, by Lewis E. W. Banks, for himself alone, against Angus.for which he prays. The cause has corne to issue on these pleadings, and has now been tried.
The difficulties which prevent the granting of any relief to the complainant depend upon three elements in the case. It was declared in Brown v. Brown, 33 N. J. Eq. 657, that: "Specific performance will not be decreed unless the existence and terms of the contract be clearly proved. It must be shown that a contract has been concluded. If it be reasonably doubtful whether the contract was finally closed, equity will not interfere by decreeing a specific performance. Nor will it interfere when the evidence leaves the agreement, as to any of its terms, in uncertainty." The proof which is offered here to show this agreement between Mr. Butler and Mr. Banks is wholly by parol. The first witness who undertakes to prove it is Mrs. Banks. Mrs. Banks testifies that her husband had set her up in the restaurant business, which she conducted during the day, and he, who had other employment, came home, and helped her during the evening. She says the negotiations which resulted in the contract were opened and continued for some time between Butler and herself, and were afterwards referred to her husband; that they were finished on December 12, 1899, resulting in a final conclusion of the agreement between Butler and herself and her husband. She testifies without any kind of hesitancy, and proves, so far as her statement can establish the fact, that the contract on Butler's part was to convey, not to Mr. Banks at all, as is alleged in the bill of complaint, but to convey to Mr. Banks and to herself. Another witness was present, who heard the final bargaining, or claimed to have heard it; and, as I recall his testimony, he also says that the agreement was to convey, not to Mr. Banks, as is claimed by this suit, but to Mr. Banks and his wife.
MR. DRAKE. That is the witness Wilson?
VICE CHANCELLOR. He is that witness who testified that he was in the next room to Butler and Mr. and Mrs. Banks, and heard their bargain.
Another witness undertook to prove the agreement by what he heard Mr. Butler say on another and different occasion. None of these three witnesses state the contract to have been that which is alleged in the bill. One testifies that Mr. Butler said that his undertaking was not only the conveying the homestead premises, but that he was also to make some payments in addition. The witness did not state with definite certainty what payments Butler said he would make, but there was a distinct statement that Mr. Butler agreed to make some money payments. There is no allegation of any such agreement in the bill. Running all through the evidence is other testimony incidentally seeking to charge Mr. Butler with an acknowledgment of the existence of a bargain upon this subject. These incidents vary, in stating the terms of the supposed bargain, not only from those alleged in the bill, but also from each other. There is a positive failure on the part of the complainant to make the proof support the allegations of the bill, and this in particulars which are of first importance, and incapable of correction, because the complainant's proofs are in themselves contradictory. Smith v. Axtell, 1 N. J. Eq. 494. In a suit for specific performance this requirement that the evidence shall prove the alleged contract is peculiarly applicable. Lokerson v. Stillwell, 13 N. J. Eq. 357; Brown v. Brown, 33 N. J. Eq. 650. And where the effort is to enforce a contract alleged to have been made with a decedent by testimony of his statements, which, because of his death, cannot be refuted, or even explained, there ought not to be any relaxation of the rule. The right to this particular mode of relief is also barred by the uncertainty whether there was in fact any concluded and final contract finished and entered into, ascertaining what should be done on the one side and on the other. Brown v. Brown, ubi supra. The very fact that the witnesses vary so much in stating the terms of the alleged agreement makes me hesitate to believe that there ever was any concluded agreement it looks rather as if the parties were in treaty for a contract Propositions were probably made touching the same subjects and incidents of the proposed contract which have been ascribed to Mr. Butler as a finality. If there had been an agreement finally settled, its terms would have been definite, and the conflicting incidents stated in the testimony offered for the complainant would not have appeared. If the terms had been fixed, it is hardly possible to believe that different persons hearing those who made the contract and state its terms would narrate so many and such vital variances as have been shown in this case by the testimony for the complainant. It does not follow that there was a concluded agreement because there was a partial performance of the proposed bargain, the terms of which had been so far stated that they could be anticipated. It is quite possible that Mr. Butler, in his urgent need, demanding that these people should come and wait upon him, might have had them come to his residence before the terms of the contract were finally completed. Taking the whole case, it has that appearance. The complainant insists that it is undisputed that at that time, and for several weeks thereafter, the complainant hat it was concluded on December 12th, was unable to abandon the restaurant, because he and his wife had an outstanding contract to "feed the Masons," as they phrase it That was to take place some two or three weeks after the 12th of December. There is also doubt as to the time when Mr. Banks was to leavethe restaurant,—whether it was instantly, or at some future time when he could make a sale. In fact, he did not get a sale and delivery of the restaurant until the day on which Mr. Butler died. Banks did not actually have all his goods moved in the Butler homestead until after Mr. Butler's death, although he began to move in and to do work there before that event. The agreement was to have been reduced to writing; but this was not done, it is said, because the justice of the peace to whom they applied was not in his office. Notwithstanding Mrs. Banks' testimony that there was a final parol agreement concluded on December 12th, I am not satisfied that the evidence, taking all its hearings, sustains her statement. Mr. Banks began moving in to the Butler homestead on January 6, 1000, as he claims, and Mr. Butler was taken mortally ill on the 13th and died on the 15th day of that month. My impression is that at that time there was no concluded contract between the parties, or, at least, that the proof on this point lacks that element of certainty which is required to support a decree for specific performance. I base my refusal of a decree upon three grounds: First. The case alleged in the bill has not been proven. Second. The evidence offered on the part of the complainant as to the terms of the contract is too uncertain to support a decree. Third. The evidence does not satisfactorily show that there ever was a finally concluded agreement. On the contrary, it indicates that at the time of Butler's death the matter was still in negotiation. Under these circumstances, the complainant's bill should be dismissed. I will advise such a decree.