Opinion
121/678.
07-09-1940
HOLDEN v. FRICKE. SAME v. ROCK SPRING CLUB et al.
Jacob Lipman, of Newark, for complainant. James F. X. O'Brien, of Newark, for defendants.
Syllabus by the Court.
1. Complainant and defendant, litigants in a law court, orally agreed to compromise, and had a consent judgment entered. On complainant's refusal to fulfill one of the terms of settlement, defendant procured the law court to open the consent judgment. Held, this action of defendant operated to rescind the settlement contract.
2. Complainant then filed his bill in equity for specific performance of the settlement. Defendant counterclaimed for specificperformance also. Held, complainant cannot rely on the rescission.
Suits by William E. Holden against Harry Fricke and against the Rock Spring Club and another, for specific performance of an agreement, wherein the Rock Spring Club filed a counterclaim for specific performance of the agreement, according to those terms contended by the Rock Spring Club.
Complainant's bills dismissed, and injunction entered against him on the counterclaim.
Jacob Lipman, of Newark, for complainant.
James F. X. O'Brien, of Newark, for defendants.
BIGELOW, Vice Chancellor.
The only question for decision is: Who has the right to the name Rock Spring Riding Club? Without stating the facts leading to the conclusion, I will say that in my opinion, complainant had the right and not the defendants, Rock Spring Club or Harry Fricke, until April 19, 1938.
April 19, 1938, was the trial day set for a dispossess proceeding in the East Orange district court instituted by Rock Spring Club against complainant. Complainant had been the tenant of the Club and had, as was alleged, stayed on in possession after the expiration of his term. While awaiting trial, the parties and their partisans conferred in the corridor and agreed upon a settlement. The attorneys announced to the court that the suit had been settled and had this judgment entered: "Judgment for possession by consent. No warrant to be issued before August 1." The parties had intended to put their agreement into writing, but when they attempted to do so a day or so later, a dispute arose what terms had been arranged in the corridor. Defendants assert, and complainant denies, that he promised to surrender to Rock Spring Club any claim to the name Rock Spring Riding Club. While the evidence is conflicting, I find for defendants on this issue.
The compromise of a disputed claim made bona fide is a good consideration for a promise. Second National Bank v. Curie, 116 N.J.Eq. 101, 172 A. 560. The principal consideration for complainant's promises, which were part of the settlement, was the consent of the Rock Spring Club that complainant remain in possession until August 1; that no warrant should issue before then. Upon complainant repudiating his agreement regarding the name, the Club returned to the district court and on May 4 obtained an order that the warrant for possession should issue forthwith. The order was granted on the Club's showing that complainant refused to go through with the settlement. This action of the Club operated as an attempted rescission of the settlement contract. Claron v. Thommessen, 96 N.J.Eq. 650, 126 A. 308; Maturi v. Fay, 98 N.J.Eq. 377, 129 A. 185.
But complainant did not accept rescission. Immediately he filed his bill in the present cause setting forth his version of the compromise of the dispossess proceeding and praying, inter alia, that the Rock Spring Club "be decreed specifically to perform the said agreement hereinbefore set forth to permit the complainant to remain in possession of said premises leased until August 1, 1938." On this bill, defendants were restrained pending suit from enforcing the judgment for possession before August 1. The Club answered and counter-claimed praying that complainant on his part specifically perform the agreement of settlement. So the parties concur that the agreement is in full force, even though they differ as to its terms, and both pray that the court enforce it. Complainant cannot be heard to say that the agreement had been terminated by an act of which he was fully aware when he filed his bill and which was indeed the occasion for his coming into court.
The agreement of settlement was made by the complainant and the Club. Defendant Fricke is the tenant of the Club, who went into possession about August 1, 1938, after complainant vacated the premises. He uses the name Rock Spring Riding Club by arrangement with the Rock Spring Club. Complainant, for a good consideration, yielded his right to use the name. His bills will be dismissed and there will be an injunction against him on the counterclaim.