Opinion
Decided January 5th, 1934.
Where complainant seeks to have the court of chancery compel the defendant to specifically perform an agreement which complainant avers to have been made between the parties, and which defendant denies, the burden of proving the contract is on the complainant. In this case, complainant has not sustained that burden; the minds of the parties never met on the pivotal provision of the contract.
On appeal from a decree of the court of chancery advised by Vice-Chancellor Sooy, who filed the following conclusions:
"Complainant herein was defendant in an action at law in the supreme court, in which action the defendant herein was plaintiff. In order to avoid confusion, I will refer to the complainant as the Trust Company and the defendant as Peacock.
"The action at law was instituted to recover $50,000 which he claimed to be due him for services rendered by him to a Mrs. Tobin during her lifetime, of whose estate the Trust Company is the executor.
"During the pendency of the lawsuit, negotiations were undertaken looking to a settlement, and there is no question but that both parties agreed on $15,000 as the amount thereof, but the question of the manner of payment of that amount is in dispute in this case.
"The final negotiations for settlement between Peacock and the Trust Company were conducted by Judge Cole for the Trust Company, in his offices, on May 14th, 1932, and as the final result of these negotiations, as to everything excepting amount, both sides disagree.
"Peacock left the conference with the understanding that he was to be permitted to take judgment for $15,000, but that he was not to issue execution on the judgment until the expiration of three months, and at the expiration of that period, if the estate was not in condition to pay without compelling it to sell stocks at a sacrifice, Peacock agreed to withhold his execution until a conference could be had with Judge Cole on the subject of the payment. Peacock further understood that in consideration of his withholding the execution the Trust Company was to deposit with Judge Cole two hundred shares of Hardwick Magee stock, to be held as security for the judgment.
"Peacock wrote a letter to Judge Cole confirming his idea of the settlement as agreed upon, and personally delivered that letter to Judge Cole on Saturday, the 14th day of May aforesaid, and on the Monday following proceeded to take his judgment for $15,000.
"Judge Cole's idea of the agreement of settlement between himself and Peacock coincided with that of Peacock with the very material exception that the judge understood that the judgment would be paid on or before January 1st then next, provided that the Trust Company should have the privilege of paying that judgment with three hundred shares of Hardwick Magee stock.
"Judge Cole sent a telegram to Peacock on the day Peacock took his judgment, and set forth in that telegram the judge's idea of the settlement agreement, and included in the telegram the provision as to the payment of the judgment by stock.
"It seemed quite apparent to me at the conclusion of the testimony that the minds of the parties had never met in such manner as to entitle complainant to the relief prayed for. That relief was not that the judgment entered by Peacock should be opened and the defendant be entitled to defend it, but `that the defendant (Peacock) be restrained from executing said judgment; that he be required to accept said stock in payment and satisfaction of said judgment, and that upon either the acceptance or refusal of the same, that he be required to satisfy said judgment of record.' The effect of this prayer is to request the court of chancery to compel Peacock to specifically perform an agreement which complainant avers to have been made between the parties and which defendant denies and which, in my judgment, has not been proved.
"There can be no doubt, from a consideration of all the evidence, that Judge Cole believed the agreement was as the Trust Company contends it was, and equally no doubt that Peacock never so understood it. The result is that there never was a meeting of the minds of Cole and Peacock on the pivotal provision of the contract, that is to say, as to the payment of the judgment, whether by cash or stock.
"The burden of proving the contract as alleged is on the complainant, and my finding of fact is that it has not sustained that burden, and while the evidence would support an application to open the judgment in order to allow the Trust Company to file an answer and have a verdict on the merits of the controversy, this court would not be justified in granting the relief sought by its prayer in its bill of complaint."
Messrs. Cole Cole, for the appellants.
Messrs. Harcourt Steelman, for the respondents.
The decree appealed from will be affirmed, for the reasons stated in the opinion delivered by Vice-Chancellor Sooy in the court of chancery.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 15.
For reversal — None.