Opinion
No. 4432.
Argued October 4, 1955.
Decided October 24, 1955.
The awarding of a decree for specific performance of a contract to convey real estate is discretionary with the Trial Court and will be granted only if the property can be identified with reasonable certainty, and that burden is on the plaintiff.
Where the description in a written instrument, drawn by the plaintiff in which the defendant agreed to convey three acres of land from a twelve acre plot, was uncertain and incomplete and the plaintiff's bill for specific performance was brought after conditions had so changed that a conveyance in accordance with the agreement was impossible, specific performance was properly denied.
The denial of specific performance does not as a matter of law preclude the awarding of damages upon amendment of the bill if the damages may be determined with reasonable certainty.
BILL IN EQUITY, against Joseph A. Paradis and Marie Paradis, for specific performance of an alleged contract to convey land. Trial by Court resulting in the first instance in an order for specific performance. On the case being reopened "for the single purpose of trying to determine where the land in question is . . ." the Court vacated its original decree and denied specific performance. To this order the plaintiff excepted on the grounds that it was against the weight of the evidence, the evidence and the law.
The original agreement, drawn by the plaintiff, was executed on April 9, 1949, and provided in substance that in consideration of the plaintiff's procuring for the defendant Joseph a lease on a certain twelve acre plot with an option to buy, which he asserts he has done, the defendant would convey to the plaintiff three acres of undetermined location in the aforesaid property. Other facts appear in the opinion. Transferred by Grant, J.
Albert J. Lipnick, J. Leonard Sweeney and Robert H. Temple (Mr. Temple orally), for the plaintiff.
Leonard Velishka and Aaron A. Harkaway (Mr. Harkaway orally), for the defendants.
The single exception transferred is to the Court's denial of specific performance. It is axiomatic that the granting of such relief is discretionary with the Court depending upon the circumstances of the case and is not a matter of right. Bourn v. Duff 96 N.H. 194, 200, and authorities cited. Ordinarily, unless it is impossible to do so, in a contract for the sale of land relief will be granted if the property can be identified with reasonable certainty, but where it cannot specific performance will not be decreed. Restatement, Contracts, s. 370; 49 Am.Jur. 34-36.
In the present case the matter turns on the wording of a contract dated September 28, 1949, supplementary to the original one and also written by the plaintiff in an attempt to clarify the description, which reads as follows: "said three acres situated and bounded as follows on the east side of road leading from Nashua, N.H. to Lowell, Mass., bordering on property of Walter Snyder formerly owned by Wm E. Young thence to southeast (sic) to property formerly owned by Leroy S. Vinal and now owned by Ferdinand J. and Claudia C. Gagne at iron pipe set in the ground at northeast corner of land, thence southeast to bounds to be designated by surveyers to amount of three acres." No survey as provided for in this agreement was ever made, and the plaintiff admitted in his testimony that the description did not make it clear what the parties had in mind. The plaintiff claimed the three acre parcel was on the "front of the land" and "faced the highway," while the defendant Joseph, who testified that he did not read English, insisted it was "on the back" of the twelve acre lot and away from the road.
In October, 1949, shortly after the signing of the supplemental contract, the defendant, Marie Paradis, wife of Joseph, bought the property from the owner lessor because, as the defendants claim, Joseph was unable to get sufficient credit to make the purchase himself. On October 20, 1950, Marie mortgaged the property to the Nashua Cooperative Bank for the purpose of constructing or repairing a house which the defendants were erecting as they say part of the plot demanded by the plaintiff. The plaintiff was aware that this house was being built at the front of the lot either "on or near" the three acres which he claims, but he took no action to enforce his rights until some years later when the present petition was filed on September 24, 1953. It further appears that two acres were sold from the southeast corner of the twelve acre plot some time prior to the bringing of the petition. Because of these changes it became impossible to make a conveyance of three acres within the general limits of the agreement.
In all the circumstances including the uncertainty and incompleteness of the agreement, we believe we need not labor the point that the Court committed no abuse of discretion when it denied specific performance. Allen v. Newmarket Associates, 95 N.H. 121; 49 Am. Jur. 34-36. The burden was on the plaintiff to establish the boundaries of the lot with reasonable certainty and it was no function of the Court to do this for him. Adams v. Mellian, 99 N.H. 140; Restatement, Contracts, s. 370. Not only, as previously mentioned, had there been no survey made but no definite guides were set up for a surveyor to follow, and the case in this respect seems similar to that of Wardlaw v. Wardlaw, 182 Ga. 209, where specific performance was denied. The situation is clearly distinguishable from authorities cited by the plaintiff where either the party requesting specific performance had gone into possession and made improvements (Prater v. Miller, 10 N.C. 628) or sufficient boundaries had been agreed upon so that the final line could be easily determined as in Asberry v. Mitchell, 121 Va. 276.
We cannot be certain from the record whether the Court finally decided not only that the alleged agreement was too uncertain to permit the granting of specific performance but also so indefinite as to preclude all relief. Nevertheless the denial of specific performance does not necessarily bar the right to damages. Restatement, Contracts, s. 370, comment b. If the plaintiff seeks to amend to recover damages, the Trial Court can determine first, whether justice requires that the plaintiff now be allowed to reopen the case on this question (Chartier v. Marshall, 51 N.H. 400), and if so, secondly, whether the evidence permits the reckoning of damages with reasonable certainty. Lupien v. Rousseau, 98 N.H. 459. If so, they may be assessed; if not, there should be a decree for the defendant.
Remanded.
All concurred.