Opinion
08-18-1837
CHEW v. CORKERY and another.
Benj. D. Shreve, for complainant. J. Jessup, for defendant.
contract, and J. withdrew, subsequently coming into the employ of W. as a day-laborer. Held, on a bill for account, filed about seven years later by J., during which time the improvements made by him had gone to ruin, that the money paid by him as rent, and on the notes, and the second bond, could not be considered as payments on the purchase-money bond; and as the amount due from him as rents and profits of the bog about balanced what he had directly paid thereon, the bill should be dismissed. 2. EQUITY—ACCOUNTING—COSTS.
A refusal by a creditor to surrender two bonds of the debtor held by him, on demand, will not subject him to costs when, upon an accounting, it is found that the debtor is entitled to the surrender of one only.
On bill for specific performance, or an accounting.
Benj. D. Shreve, for complainant. J. Jessup, for defendant.
BIRD, V. C. Chew and Corkery entered into a written agreement by which the latter, in consideration of the conveyance to him by Chew of two lots of land, valued at $1,500, and of the payment of $5,500, the sum of $1,500, part thereof, on the twentieth of November, 1875; and $2,000 on the twentieth of November, 1876; and $2,000 on twentieth November, 1877,—together with lawful interest,—agreed to sell and convey unto said Chew the equal undivided one-half interest in certain lands, which agreement was dated November 25, 1873. Chew executed and delivered a deed to Corkery for the two lots, but it happened that they were covered by mortgages for their full value. About the same time Chew gave to Corkery his bond for $5,500, the balance of the purchase money above the two lots. Corkery was to deliver a deed for the premises sold to Chew, on the twentieth of November, 1877, when Chew was to pay the last installment of the purchase money. About the time of the execution of the agreement, Chew was let into possession with Corkery, and he was also let into possession of a house and lot of Corkery's for which he was to pay rent. The renting of this house and lot was independent of the written agreement. By the agreement it was provided that a laborer should be hired to do the work upon the premises, who was to be allowed two dollars a day. When Chew entered upon the premises he had made no payments in cash, but he commenced the cultivation thereof. The premises were principally devoted to the growth of cranberries. They realized large sums of money from the growth and sales of berries during the next four years; one year over $5,000, the number of bushels being over 3,000. These moneys were divided between them upon an accounting. May 20. 1875, Chew gave to Corkery a bond to secure the payment of $1,348.46. Out of the share allowed to Chew for the year 1875, he paid the six months' interest on this bond, due November 20th, and the rent due for the house and lot which he occupied, and the amount due upon two notes,—one of $200, and one of $300,—which he had given to Corkery; and" he also paid $385, one year's interest on the $5,500 bond, and $1,441.63 of the principal of said bond. From this it will be seen that he did not quite pay the whole amount of the installment then due. November 27, 1876, Chew paid $284.08, the interest on the principal still remaining due. May 20th of that year, (1876,) he paid $48.08, half year's interest then due on the bond for $1,348.46. The only other payment indorsed is one of $96.16, upon the same bond dated May 20, 1877. However, Chew claims that he is entitled to have a credit for $339, the amount realized for one-half the berries in 1877.
In June, 1878, if not earlier, Corkery told Chew that, because of his failure to make payments according to the agreement, he had forfeited all his right to the land, and that he would not make him a deed therefor. At that time the whole amount of the purchase money, $7,000, (the two lots conveyed at $1,500 having no equity in them over and above the mortgages,) was due, less $1,441.63, which was paid November 20, 1875. Supposing that Chew was entitled to the $339 which he claims as due him for his half of the crop for1877, it would not pay the interest then due upon the whole balance of the purchase money, which balance was $5,558.37. In the spring of 1878, Chew left the premises, and went into the employ of others. At that time, or soon after, he asked Corkery for the bonds, and Corkery refused to deliver them. Chew says that Corkery told him "that a man is never released until he has paid the last dollar of his obligations." After Corkery told Chew that he had forfeited all right to the land, and after Chew had left the premises, he went back in the employ of Corkery as a day-laborer, and worked for him on this same cranberry bog.
A bill is now filed by Chew asking for a specific performance of the contract, or for an accounting, and a decree making the balance found due to Chew a lien on the premises; and for an order directing Corkery to surrender said bonds. A decree for specific performance is not pressed. Are there moneys in the hands of Corkery due to Chew? In the consideration of this question it seems my duty to say in the outset that I cannot help being somewhat influenced by the laches with which, I think, Chew is chargeable. In June, 1878, if not earlier, (I think in March,) Corkery had told Chew that he had forfeited all rights under the agreement, and Chew had left the premises, but he did not file his bill until February, 1885. Before he left he had proved himself unable to comply with the terms of the sale. Before he left he knew that Corkery denied that he had any rights under the contract, and that Corkery had told him "that a man is never released until he has paid the last dollar of his obligations"." After he left, and in the month of June in that year, he demanded these bonds, and Corkery refused to surrender them. After these occurrences, and after he had quit the possession of the premises, he returned to the service of Corkery, as a day-laborer, and that, too, during the same year. All of these circumstances show that Chew must have understood that Corkery regarded the contract as abandoned, and also show that it was the plain duty of Chew to act accordingly, whether he regarded the contract as abandoned or not. At this time Corkery was over 80 years of age, and is now in his eighty-seventh year; so old, and feeble in intellect, that he has lost all certain knowledge of these transactions; so that by Chew's delay he has most extraordinary advantage of his adversary. But it seems to me very plain that Chew himself supposed that the relation of vendor and vendee had ceased, and beyond doubt he had abandoned all idea of enforcing the contract. Beyond doubt, he felt himself utterly unable to comply with its terms. These things being so, it is quite remarkable that he should wait more than six years before bringing his suit for the recovery of moneys which he claims are equitably due to him, which moneys arose from their joint labor on the said premises, his share of which he had paid to Corkery under the agreement for purchase. This apparent laches has not been pleaded or set up by way of answer; and it is claimed by Chew that a delay of a year or more was occasioned by correspondence between the parties; this, however, does not bar the court from giving it proper consideration. With this observation I pass it and will look into the merits.
The parties stood to each other in the relation of landlord and tenant, for one rented a house and lot of the other; and also of debtor and creditor, for Chew gave to Corkery his bond for $1,348.46, and bis two notes, one for $200, and one for $300; and likewise of vendor and vendee, under the said written contract. Let us consider their rights in these several relations, in the light of the facts before us. Chew paid Corkery the rent for the house and lot out of the moneys realized from the sale of berries. I think, from Chew's statement, this was for four years, at $50 per year, in all $200, without interest. Corkery being entitled to this rent absolutely and independent of the contract, Chew certainly can claim nothing on account of those moneys. The bond for $1,348.46 was also independent of the contract. The consideration thereof was $275 worth of berries, bought of Corkery by Chew, and $341, one-halfthe cost of putting up a berry-house and a saw-mill, $385, the interest for one year on the $5,500, so much of the purchase money, and two notes—one of $155, and one of $107—which Chew had borrowed from Corkery at different Times. Laying out of these amounts the cost of the improvements and the interest, it appears that at the date of this, bond, May 20, 1875, there was due to Corkery $537. No part of the principal of this bond has been paid; the interest for two years, in all $192.32, has been paid; so that, aside from the agreement of sale, Chew owes Corkery $537 on this bond, and the interest, less the $192.32. During the period that Chew was in possession, the two notes—one of $300, and one of $200—were taken into the account, and were paid out of the proceeds of the berries. Chew says this was in 1875, when, he says, his share of the crop amounted to over $2,300.
I think we are the better prepared, now, to consider the rights of these parties as vendor and vendee. The counsel of complainant claims that all of the moneys which Chew paid Corkery, from the time he entered into the agreement to purchase, upon either of the bonds mentioned, must be regarded as purchase money. So far as the bond of May 20, 1875, is concerned, the payments of $192.16 thereon cannot be regarded as payments of so much of the purchase money, for there is still due on said bond a large amount arising out of separate matters. I can only consider the payments made upon the $5,500 bond, made at the time of the execution of the agreement to purchase, as payments of so much of the purchase money. How much money was paid on account thereof? As already appears, November 20, 1875, there were $1,826.63 paid; one year thereafter, $284.08; and, as intimated, Chew claims that his half of the proceeds of the crop in 1877 were $339, which, he says, he never had credit for upon the bond. Relying upon his statement as correct, it appears that the whole amount of money paid, or claimed to have been paid, by Chew, under this contract, was $2,449.71, and this entire amount, I understand his counsel insists, Chew is entitled to at the hands of Corkery, as so much purchase money paid upon a contract which was afterwards rescinded. But, although Corkery had so much of the purchase money, Chew was in possession of the land, and, since he has surrendered that possession, he must account for the rents and profits while he was in possession. He who asks equity must do equity. In order to ascertain what is just upon this head, I must rely entirely upon the statements of Chew himself; statements, however, which were made, not with reference to the rent and value of the premises, but with reference to the net amount that he was entitled to each year.
In 1874, 800 bushels of berries were gathered; the amount of money realized has not been given; Chew saying: "I can't tell you; I can't account for any of it." Hence I am left to approximate. The next year, when the crop was most abundant, they realized over one dollar and a half per bushel, which would make the whole crop for 1874 worth $1,200. Supposing the net proceeds were $800, Chew's half would be $400. He says that in 1875 his half of the crop exceeded $2,300. In 1876 the bog produced about 1,300 bushels. It does not appear what amount of money they realized from this crop, but, at the estimate before given, it must have been about $2,000. Allowing $500 for the expenses of marketing, the net proceeds would be $1,500, making Chew's share $750. For 1877, he says that his share of the crop was $339. From these results I must ascertain what Corkery is entitled to as rents and profits. I know no better nor safer guide than to charge Chew with one-half of the net proceeds, which would be $1,894.50. This would make Corkery liable to Chew for a like amount. In addition to which Corkery is entitled to the amount due upon Chew's bond of May 20, 1875, which is $537. Add this $537 to the $1,894.50, and it shows Chew's liability to be $2,431.50, which amount, deducted from the $2,449.71, leaves a balance of $18.21 due to Chew. This result is arrived at without charging Chew with the $341, included in the bond of May 20, 1875, which, he says, was for building theberry-house, and repairing the mill on the premises. With this I think he ought to be charged. He gave his bond therefor, and he bad the benefits of the berry-house and mill while in possession, and there is nothing to show that the berry-house is of any considerable value, and, so far as there is any light upon the subject, the mill is in a very dilapidated condition. If I am right in this view, upon a reasonable statement it will be found that Chew was in Corkery's debt over $300 at the time the contract was abandoned. It will be borne in mind that Chew was allowed in these settlements $2 per day for every day's work upon the premises, so that for this he has compensation; while, in principle, all this should be charged back to him, since the tenant who receives half of the crop is supposed to do all the work.
Considering these things, it may be said that it is not surprising that, when Chew demanded the bonds of Corkery, he did not demand the $2,441, nor any part of it. Doubtless, he must have then felt that there was nothing due to him, and been influenced by the remark of Corkery to the effect that he was not released from his obligations until they were fully satisfied. I cannot conclude that there should be a decree against Corkery to surrender the bonds. It may be his duty to surrender the one for $5,500, but the demand on him was not for that one alone, but for both, and, therefore, too large to put him in fault, and subject to costs. He had a right to retain the bond on which is money due to him.
I will advise that the bill be dismissed, with costs.