National Iron Armor Co. v. Bruner

The Chano ellob.

The complainants ask for the specific performance of a contract for the conveyance of lands, with compensation for a deficiency of a part alleged to be in the contract, to which the defendants have no title. The contract was made by Bruner, the trustee of Mrs. Baxter, the other defendant, with her consent, and was in writing, signed by W. S. Fore-paugh, the agent of Bruner. The agreement was a lease of certain premises to the complainants for two years, with the right to purchase, for the price of $18,000, at the election of the complainants, to be made during, or at the expiration of *334 the term.- The tract was described in this lease as that situate at Kajghn’s Point, adjoining the complainants’ works, known as the Baxter lot; and no further description .was given of it.- It was a lot which Thomas E. Baxter,, the husband of the defendant) Mrs. Baxter, had conveyed to Bruner in. trust for her, and was well designated by that name. The complainants allege that Forepaugh represented to them, when making the agreement, that the tract was over two hundred, and -thirty feet in extent along the Delaware river, and exhibited the deed, or a copy of the deed, to Bruner., in which it is described as two hundred and thirty-one feet six inches along the river, when, in reality, it is only one hundred and- ninety-three feet in extent along the river; and that afterwards, when the matter was brought to Forepaugh’s attention, he agreed that they should have an abatement, in proportion to the deficiency. They allege that they gave notice to Forepaugh, within the two years, of their election-to purchase the property, as provided in the lease.

Th.e defendants admit that Forepaugh was employed to receive offers for the sale or letting of this property, and that he submitted the offer of the complainants to them, and that they authorized his making the lease and contract signed by him; but deny that Forepaugh had any power to rent or sell, except upon terms first submitted to, and approved by them.

The bill charges, and the answer admits, that in the deed to Bruner the tract was described as extending along the Delaware river, two hundred and thirty-one feet six inches, and that it is, in reality, only one hundred and ninety-threefeet; that a lease was drawn up by direction of .the'complainants and Forepaugh, in which the description of the property was copied from the deed; that this lease was signed by the complainants and defendants, but was never delivered, the delivery -being stopped on account of this error in the description of the tract. The defendants deny any knowledge of notice of the election of the complainants to purchase being given to Forepaugh, or to themselves, within the two *335 years, and that the complainants have at any time offered to comply with the contract, on their part, by taking the deed, and paying and securing the money.

The complainants have erected on the premises extensive buildup's, at the cost of several thousand dollars, a great part of which was done since the alleged error as to the river front was discovered by them.

Eorepaugh died about two months after the lease was signed by him; that is dated June 29th, 1868. The only proof of the authority given to him by Bruner, is in the evidence of Bruner, which corresponds with his answer. By this, Eorepaugh had no power to sell or lease) or vary the terms of a sale or lease) except upon first reporting the proposition to him, and obtaining his assent; the lease which was signed, was signed in that manner. There is no proof in the case, that the defendants, in any way, held out Eore-paugh as their general agent, or did, or permitted any act which could deceive or mislead the complainants as to his power.

Making a contract as agent, at a fixed price, and the approval of such contract by the defendants, does not bold him out to the world as an agent to sell at any other price, or to vary the terms of sale. It is every day's practice for an owner of real estate) to authorize an agent to sell it at a certain price, a given part in cash and the rest on credit. The agent cannot bind the principal to a sale on any other terms. The purchaser must ascertain, at his own peril, the power of the agent. And if the agent’s contract on these terms is approved, and adopted by the principal, the purchaser has no right to infer from that fact, that the agent has power to alter the terms of the contract.

An agent with restricted power to sell a tract of land at a given price, has no power to bind his principal by any representation as to the quantity or quality of the land. That is beyond bis power; or else by representing that a tract of five acres, which he was authorized to sell for $1000, contained ten, he could bind his principal to convey it for $500 *336 onthe-, principle of compensation. False representations made by -an agent at the bargain, although unauthorized by his-principal, may release the purchaser from his contract, on- the ground of fraud or deception, which is upon another principle of equity; but they cannot bind the principal, if beyond the scope of the authority given.

But if the principal himself, had made the representations as to the extent of the front, alleged in this case, and they had been by parol outside of the contract, the contract being in writing,- they would not authorize the court to decree specific performance with compensation for the deficiency. It is a settled principle of equity, that where a written contract of sale, or written particulars delivered with it as part of it,, describe the land as of certain dimensions or contents, and they in any way fall short, the purchaser will have the right to call foy a conveyance of the part which the vendor can convey, with a proper deduction as compensation for the deficiency. Fry on Spec. Perf., § 299 and 791; Hill v. Buckley, 17 Ves. 395; King v. Wilson, 7 Beav. 124; Water v. Travis, 9 Johns. R. 465 ; Couse v. Boyles, 3 Green’s C. R. 212.

But the same effect is not given to parol representations made at the contract, or before it. And this distinction is very properly made upon correct principle. The statute of frauds would be of little avail in such cases, if alleged parol representations should be incorporated by this court into the written contract, and performance compelled of this reformed contract. Parol evidence of such representations is received in equity, but for the purpose of showing such actual fraud, or such misleading of the defendant by the mistake of the complainant, as would make it inequitable to decree specific performance, when that is sought by the party making the misrepresentations. But parol evidence is never received to lay the ground for compensation for deficiency. This is the uniform and established doctrine in equity. Winch v. Winchester, 1 Ves. & B. 375; Rich v. Jackson, 4 Bro. C. C. 518; The Marquis Townshend v. Stangroom, 6 Ves. 328 ; Miller v. Chetwood, 1 Green’s C. R. 207.

*337 On either of these two grounds, compensation for any deficiency by deduction from the price must be refused. It will be, therefore, unnecessary to consider the weight or sufficiency of the evidence as to the alleged representations or promises of Forepaugh.

There might he a serious question, whether the notice to Forepaugh of the election to purchase, would, under other circumstances, be sufficient. But the expensive buildings and improvements openly and notoriously erected on the premises by the complainants, gives them a claim to the favorable consideration of the court; and as the counsel for the defendants, upon the argument, seemed to concede the right of the complainants to a conveyance upon paying the arrears of rent, and the purchase money with interest, let there be a decree for a conveyance to the complainants on these terms, within a reasonable time to be fixed in the decree. The costs of the suit must be paid by the complainants.