Opinion
03-06-1888
STEVENS v. ROSS.
C. & R. W. Parker, for complainant. Hamilton Wallis and James P. Northrop, for defendant.
On bill for relief. For statement of facts, see 11 Atl. Rep. 114.
C. & R. W. Parker, for complainant. Hamilton Wallis and James P. Northrop, for defendant.
VAN FLEET, V. C. The proofs fail to show that the complainant abandoned the contract sued on, or relinquished his rights under it. On this point the burden of proof is on the defendant. To succeed, his proofs must outweigh those of the complainant. The defendant's proofs, standing alone, uncontradicted by the complainant, would not, in my judgment, be sufficient to establish a case of relinquishment or rescission.
My opinion as to the construction of the contract has undergone no change since the motion to dissolve the injunction was decided, except that my conviction that the construction then adopted is the true one is rather stronger now than it was then. The purchase of the contract was a joint venture. The contract so expressly declares. It says, "This purchase is a joint transaction, involving you equally with myself." Again, "We are to share equally in any profit or loss resulting from this transaction." There can be no doubt that if the defendant, after taking title, had been compelled to sell at a loss, the complainant would have been liable to answer to him for the one-half of it. The words, "the said purchase has been made solely on the expectation of your [the complainant] being able to sell the property, prior to the time when the contract expires, at an advance upon the purchase price," cannot be construed to limit the complainant's right to such profits as should be made on a resale of the contract before the day on which the deed for the land was to be delivered; but they were obviously inserted to show the inducement which led the defendant to make the purchase, and also to show that, in case a resale of the contract was not effected before the time when the purchase money was to be paid and the deed delivered, the defendant should be subject to no duty to the complainant to use his own money to pay for the land, and that, if loss resulted from his failure to do so, the complainant should nevertheless be answerable for one-half of it. The complainant is entitled to one-half of the profit made by the defendant on the sale of the land. The defendant must account. A reference will not, however, be ordered in the first instance. The decree will direct the defendant to deliver to the complainant's solicitor, within 20 days after service of a copy of the decree, an itemized account, showing the gross profits realized, and also the deductions which the defendant claims should be made there from to show the net profit. The complainant shall,within 10 days after receiving the account, notify the defendant's solicitor, in writing, whether he is satisfied with the accuracy of the account or not, and, if not satisfied, he must state the particulars in which he believes the account to be erroneous; and thereupon either party may, upon 5 days' notice to the other, apply to the court for direction as to how the objections or exceptions to the account shall be tried and determined. If the complainant is satisfied with the account rendered by the defendant, he may at once, on receiving the account, apply for a decree. The complainant is entitled to costs.