Opinion
04-26-1893
FARRLNGTON v. FORMAN.
Samuel A. Patterson, for complainant. R. T. & W. B. Stout, for defendant.
Action by Theresa G. Farrington against Catharine Forman for an injunction against the prosecution of an ejectment suit brought by defendant, and for the specific performance of a contract for the assignment of a lease of the premises. Decree for complainant.
The other facts fully appear in the following statement by GREEN, V. C.:
The complainant alleges that June 10, 1884, she made a contract with the defendant for the purchase of the unexpired term of a lease for 99 years of certain premises in Ocean Grove, for the sum of $1,250, and at the time paid $300 on account, taking a receipt therefor; that the defendant, at the time, was the wife of one Cornelius Hustice, who afterwards left the state, and from whom his wife subsequently procured a divorce, and afterwards married one William Forman, her present husband. At the time indicated it is alleged that the husband Cornelius Hustice was the duly-authorized agent of his wife. The following receipt was taken: "Ocean Grove, 10th, 1884. Received of Theresa C. Farrington three hundred dollars, as part payment on the cottage known as 'Cyprus Cottage,' situated on the southeast corner of Whitefield avenue and Herman way, Ocean Grove, township of Neptune, Monmouth county, state of New Jersey. [Signed] C. Hustice." It is alleged that it was the agreement that the lease should be assigned, by good and sufficient deed of assignment, by the said Catharine C. Hustice to the complainant, when she had paid to her the full amount of the consideration. The complainant alleges that she paid to Cornelius Hustice, as the agent of his wife, at different times, on account of the purchase money, the sum of $1,030, for which she took his receipt in writing. Cornelius Hustice was administrator of the estate of Jane A. Brower, deceased, which estate was indebted to the complainant, in the summer of 1885, in an amount more than sufficient to pay the balance of the purchase price of the premises. The bill alleges that it was agreed between the complainant and defendant that the money so due to the complainant should be applied on the contract of sale, and the assignment of the lease be made to the complainant as soon as the papers could be prepared, and very soon thereafter Cornelius Hustice left the state of New Jersey. The bill alleges that the complainant, before she had paid any money, told the defendant of her agreement with her husband, and defendant then informed the complainant that her husband was her agent, and transacted all her business. The complainant was let into the possession of the house and premises on making the first payment, and has since remained in possession of the same, no rent being demanded of her by the defendant. That on June 3, 1891, she offered to pay the defendant the sum of $308.16, the balance of the purchase money due, and interest thereon from October 4, 1884, and demanded a conveyance of the premises. Defendant waived, in writing, a tender of the money, and refused to make a conveyance. On May 2, 1891, the defendant commenced an action in ejectment in the supreme court to recover the possession of the premises, which suit is at issue, and liable to be tried at the Monmouth circuit. The bill prays that the defendant may be perpetually enjoined from prosecuting her action of ejectment, and from disturbing complainant in the quiet and peaceable possession of the premises, and for other and further relief. It also prays that the defendant may be decreed to specifically perform and carry out her agreement, and to make, execute, and deliver to the complainant a good and valid assignment of the lease for the premises aforesaid, for the unexpired term of 99 years.
The defendant, by her answer, denies that her husband Cornelius Hustice had any authority from her to make the sale, or any agreement therefor; that the receipt of June 10, 1884, was given without her knowledge or authority; that she never knew of it until she saw it stated in the bill of complaint. She denies all the allegations of the bill in any way connecting her personally with the transaction.
The answer sets up that the defendant made several attempts to have the complainant peaceably give up the possession of the premises, and that, on the 19th day of December, 1884, complainant agreed that if she could remain in possession until April 1, 1885, she would then peaceably surrender the said premises, and that the defendant, in order to avoid legal proceedings to get the possession, gave the complainant a receipt as follows: "Received, December 19th, 1884, of Theresa C. Farrington and Abraham B. Farrington, rent in full to April 1st, 1885, for house on the southeast corner of Whitefield avenue and Mount Herman way, Ocean Grove, N. J., at which time said parties are to vacate said premises. [Signed] Kate C. Hustice." On the trial the complainant produced the receipt of June 10, 1884, before referred to, as well as a receipt dated June 17, 1884, signed by C. Hustice, being for $250, "on account of house known as 'Cyprus Cottage,'situated on the southeast corner of Whitefield avenue and Mount Herman way, Ocean Grove, township of Neptune, county of Monmouth, and state of New Jersey;" also a receipt from C. Hustice, dated October 4. 1884, for $480.28, in cash. Complainant testified that, before she made the purchase, the defendant, at different times, told her her husband attended to her business; that she told the defendant she had bought the property, who said to her, "Yes; her husband had told her so;" that defendant said "that she herself did not know much about business, and trusted it all to her husband." Complainant moved into the house on the 1st of March. Soon after she had a conversation with the defendant, who came over to the house, and expressed her pleasure, and spoke to her about her home, and she came to the house frequently; that she urged complainant to build additions to the house, so that she might take boarders, and it would enable her, in that way, to make some money. Complainant spoke to her about the doctor being in trouble, and that he was going away, and asked her about the papers for the house; to which the defendant replied that the doctor was having the papers fixed, and that complainant should not lose anything. When she spoke to her about paying money to the doctor, defendant said that the doctor was attending to her business. It seems that the doctor was arrested, and defendant said to the complainant that she was sorry complainant had not got the lease so that she might have gone on the doctor's bond. A stipulation was put in evidence admitting a tender of $308.16, as the balance due the defendant on the purchase price under the agreement, which was dated June 5, 1891. As to the receipt spoken of in the answer, purporting to be for rent, she says that it was left at her house by a person, but that she never paid any rent, and gave the papers to her counsel. It was testified by other parties that the defendant had stated to them that she had sold the property to the complainant; and to Mrs. Lucas she said that the doctor had just sold it; that this was a few weeks before complainant went into possession. The husband of the complainant also testified to conversations with the defendant, similar to those which have been sworn to by his wife; that he himself paid the $480.28, covered by the receipt, and defendant said to him afterwards, that they "now had their little home very nearly paid for." The evidence of the defendant, who was sworn in her own behalf, is to the effect that she did not authorize her husband to make this transaction; but her denial is overcome by the clear weight of the evidence, and I am satisfied that she not only authorized him originally to do it, but that she ratified the contract after it was made, and before the payments were made by the complainant, and she should be estopped from now denying it.
Samuel A. Patterson, for complainant.
R. T. & W. B. Stout, for defendant.
GREEN., V. C. (after stating the facts.) I have reached the following conclusions in this case:
1. That in June, 1884, Cornelius Hustice, then husband of the defendant, was the agent of the defendant, so far as to authorize him to hind her in a contract for the sale of the unexpired term of the lease in question.
2. That, beingso authorized, he did make an agreement with the complainant to sell the said lease for the sum of $1,250; that complainant has made certain payments on account of said purchase money, so that on June 3, 1891, there was a balance, including interest, of only $308.16, which amount complainant offered to pay the defendant, who, by her solicitors, waived a formal tender.
3. That, prior to the payment of any money by the complainant on account of the purchase, she was informed by the defendant that defendant's husband was authorized to act for her in making such agreement, and that the payments made by the complainant were partly on the faith of such representations.
4. That the defendant repeatedly ratified the contract made by the husband with the complainant.
5. That complainant is entitled to have the prosecution of the suit in ejectment enjoined, and to a decree for the assignment of the lease.