Opinion
09-19-1888
HESS v. EVANS.
M. B. Taylor, for complainant. P. L. Voorhees, for defendant.
In equity. Bill for specific performance.
M. B. Taylor, for complainant. P. L. Voorhees, for defendant.
Hess and Evans entered into an agreement to exchange certain houses and lots; Hess to convey to Evans a house and lot situated at Cape May, and Evans to convey to Hess three houses and lots situate in Camden. The terms respecting payment of supposed difference in value are not material. At the time of the execution of the agreement, Evans had never seen the house which Hess offered to exchange; but when the negotiations were first opened by one Coleman, the agent of Hess, he produced a photograph of a house which Evans understood him to say was the house which he offered to exchange. There was also, on the same photograph, a partial representation of another house, also owned by Hess, and which is in almost all material respects similar to the one which is fully represented thereon, and which Evans swears is the one Coleman offered to him. In a very few minutes after the photograph was produced by Coleman he brought Hess into the presence of Evans, and the negotiations were continued, Coleman remaining present all the while. With this photograph before them, Evans made a great many inquiries of Hess, just as he had previously done of Coleman, respecting the location of the cottage, its furniture and arrangements; to all of which Hess gave very satisfactory answers. The negotiations progressed until the terms were all concluded, except the boot money, which Hess insisted on Evans paying; when Evans said that he would go with his wife, and look at the cottage, before he would conclude the bargain; at which point Hess left, Coleman, however, remaining, pressing Evans to conclude the terms of exchange until he accomplished his purpose, when an agreement was prepared and executed. Nevertheless Evans asked Coleman for the photograph and key of the cottage which he had agreed to take in exchange, that he might examine it, and the photograph which had been exhibited and a key were handed to Evans by Coleman. Evans and his wife went to examine the cottage, and when they came in sight they recognized the one which was fully represented on the photograph, and went to it, and tried to unlock the door, but found that the key would not unlock it. Evans then compared the number of the house with the number on the key, and saw that they were not the same; and, on further examination, saw that the number on the adjoining house corresponded with the number on the key. This adjoining house is the one which is partially represented on the same photograph, and the number is the same as the number mentioned in the agreement which had been executed by the parties. Before Evans visited the cottage, Hess asked him to make a payment of a portion of the boot money which he was to give on the exchange, which Evans consented to do, although he was not bound so to do until the exchange took place, and gave Hess $250. Evans at the same time handed to Coleman all of his title deeds, that Coleman might have prepared proper deeds of conveyance of the lots which Evans had agreed to convey to Hess. Then Hess executed a deed to Evans for the cottage, and also had a deed prepared for Evans to execute for his lots to Hess. On the day named for that purpose in the agreement, Hess tendered a deed for the cottage to Evans, and demanded the balance of the boot money; and also requested Evans to execute the deed which had been prepared for that purpose, by which, when executed, he would convey his lots to Hess. At once Evans refused to proceed any further with the transaction.
Hess has filed his bill for a specific performance of the contract. Is he entitled to a decree? In my judgment he is not. If Coleman, who undertook to manage this affair for Hess, was not guilty of a gross fraud, it is very apparent that there was no binding agreement entered into. They did not negotiate about the premises. Leaving out of view the question of fraud, then it is plain that Hess was offering lot 17, while Evans understood that he was agreeing to take lot 19, or the one fully represented in the photograph. And, whatever the honest understanding of Hess may have been, Coleman was not honest, and knew that Evans was under the impression that he wasnegotiating for lot 19, as the evidence establishes; for, as soon as Evans returned and met Coleman, he told him there was something wrong about the transaction, and said that he wanted to see him about it, and made an appointment with him for that purpose, which Coleman failed to keep. Evans afterwards wrote and telegraphed Coleman before he could secure an interview. And, when he did meet him, it was at the dwelling of Evans, and in the presence of Evans' wife and of two other persons, all of whom agree with Evans in saying that, when Coleman came in, Evans said, "Coleman, did you not trade me that property that that photograph represented, and no other property?" and that Coleman replied, "Yes, 1 did; and I will see that you get that property yet." Afterwards, but in the same interview, Coleman said, "Evans, I have traded that property off several times, the same way." To this Evans replied, "Mr. Coleman, you cannot come that game over me." Coleman again said, "I know that is the property you traded for, and I will see that you get it yet." Therefore, if Hess was honest in believing that the exchange was a fair and honest one, it is undoubtedly true that Coleman knew that it was not. A contract so procured cannot be enforced. The property Hess was selling was not the one that Evans was buying. There was no agreement.
The defendant has, under the rule, not only answered the bill, but answered by way of cross-bill, in which he sets up the payment of the $250, and asks that it be ordered repaid to him. Such an order will be advised. The defendant is entitled to costs, both on the original bill and on his cross-bill.