Opinion
No. 45/400.
10-11-1919
McNAMARA et al. v. BOHN et al.
Arthur T. Vanderbilt, of Newark, for complainants. Raymond P. Wortendyke, of Jersey City, for defendants.
Bill between Edward James McNamara and others and Alfred Bohn and others. Decree dismissing the bill.
Arthur T. Vanderbilt, of Newark, for complainants.
Raymond P. Wortendyke, of Jersey City, for defendants.
GRIFFIN, V. C. The bill in the above cause was filed to compel defendants to specifically perform a contract alleged to have been entered into between Philip C. Bohn, in his lifetime, and his daughter, Mrs. McNamara, in her lifetime, whereby, if the daughter would give up her home in New York City, where her husband was employed, move to Dumont, N. J., with her husband and children, and take cure of her father during his life, that he would leave his will devising the premises in question to her. This offer was accepted by the daughter. She did move to Dumont, N. J., with her husband and children, did take care of her father during her life, and during that period in every respect faithfully performed her part of the alleged agreement; and thereafter her husband assumed the same relation and duty with respect to the father, and continued, or at least was ready and willing, to perform the terms of the said agreement.
Shortly after the daughter moved to Dumont, her father made his will, which harmonizedwith the alleged agreement. After the making of the will, the daughter, believing that she would be better protected with a deed of the premises, induced her father to convey the same to her. After her death her father filed his hill in this court to set aside this conveyance, and was successful, and thereafter made a will devising said premises in a manner which violated the terms of the said agreement, whereupon this bill was filed.
The principal witness for the complainants to prove the agreement was Mr. McNamara, who, while truthful, displayed a mental attitude towards the case which tended to give his counsel very little aid. It is quite inferable from his actions on the stand, as well as from his evidence, that this condition was due to the fact that, having lost the former suit, he had abandoned hope of prevailing in this. The testimony of Mr. Wolf might, in some respects, have been treated as corroborative, if the contract had been proven. The complainants also offered in evidence the testimony of Mr. Fhilip C. Bohn (the father) taken on the trial to set aside the conveyance. The defendants offered no evidence, being content with the case as made by the complainants.
Counsel for defendants argues, among other tilings, that specific performance cannot be decreed, because the alleged agreement is not in writing, and is therefore void under the statute of frauds. 2 Comp. Stat. p. 2612, § 5. I cannot agree with this theory of the defendants. The cases of Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 773, Vreeland v. Vreeland, 53 N. J. Eq. 387, 32 Atl. 3, and numerous others in this state, seem to settle the law contrary to the defendants' view.
The difficulty with the complainants' case is the absence of that character of proof which is required to establish a contract. In the case of Cooper v. Carlisle, 17 N. J. Eq. 525, at page 530, the court said:
"The contract proved must be clear, definite, and certain, both as to its terms and its subject-matter."
And to the same effect are Cooper v. Colson. 00 N. J. Eq. 328, 58 Atl. 337, 105 Am. St. Rep. 660, 1 Ann. Cas. 907; Brown v. Brown, 33 N. J. Eq. 650, 657; Vreeland v. Vreeland, supra; McTaguo v. Finnegan, 54 N. J. Eq. 451 101. 35 Atl. 542, affirmed 55 J. Eq. 588, 39 Atl. 1114. And see the language of the court in Cooper v. Carlisle, supra, on page 529. In Burrell v. Middleton, 72 N. J. Eq. 774, 65 Atl. 978, Vice Chancellor Leaming said that "such parol agreements are not favored and must be clearly proved." He was affirmed in 73 N. J. Eq. 741, 70 Atl. 1100.
The spirit of the law, gleaned from the authorities, is that, while courts of equity, to prevent fraud in such cases as this, will decree specific performance, yet, by reason of the possibility of fraud and misunderstanding, such contracts will only be enforced when their terms, if in writing, would have been enforceable, and the proof of the oral agreement is clear and convincing.
The evidence in this case in proof of the contract, as well as its terms and conditions, is so vague, indefinite, and uncertain that I feel constrained to advise a decree dismissing the bill.