Reddington v. Henry

If the purchaser buys land, and advances his money in payment of the price, and demands such a deed as the contract calls for, and the vendor refuses to give it, but insists on his receiving a different and inferior title, the contract may be regarded as broken, and the purchaser may sue at once, and recover the money paid with interest. "Where the evidence of title is worthless, it need not he returned before action brought, but may be deposited with the clerk of the court, for the use of all in interest.

Assumpsit for money had and money paid. Writ dated June 13, 1866. The plaintiffs introduced a subscription book, the terms of which were as follows : "We, the undersigned, promise to take the number of shares set against our respec:ive names, and to pay to James E. Henry and Charles C. Moulton the sum of one hundred dollars, (§100) for each and every share so subscribed. The said J. E. Henry and C. C. Moulton hereby obligate themselves to lease to each and every shareholder for the period of thirty years, his proportion of twenty-five shares of $100 each in the following described pieces or parcels of land situate in the township of Musa, county of Middlesex, Canada West, and being strips number one to four in lot 22, second range north, containing ten acres; said leases to be given as soon as the full amount of twenty-five shares of $100 each, shall be subscribed. Littleton, N. II., November 20th, 1865.” Three witnesses ivere examined on the part of the plaintiffs, Cyrus Eastman, and the plaintiffs, Henry C. Reddingt'on and George B. Reddington. Their testimony tended to prove the following facts : The plaintiffs signed ' the subscription book aforesaid for one share of $100, on or about the 21st of November, 1865, and on or before the 27th of the same month paid that sum to the defendants. On the 27th of that month the plaintiff and other subscribers met at J. Farr’s office in Littleton, and chose a President, Secretary and Treasurer. The defendant Henry appeared at the meeting, stated that the twenty-five shares had been subscribed and paid for, and delivered the subscription book to the subscribers. The principal question considered at this meeting was whether a lease should be given to each subscriber, or one lease to one of them, to be held in trust for all, and it was decided to have one lease, and Cyrus Eastman was selected to take • it as trustee. Henry assented to this arrangement and said he had authority to execute the lease for Moulton, and was ready to give one then in his own and Moulton’s name. But the subscribers preferred that the lease should be executed by Moulton himself. It was then arranged that a lease should be drawn running to Eastman, taken to Boston where Moulton then was, executed by him and Henry, and sent to Eastman at Littleton. It was understood that Evarts W. Farr, who was one of the subscribers, and has acted as counsel for the plaintiffs in this suit, and is one of the subscribers who have agreed to share in the expense of caí rying on this suit, should make a draft of the lease. It was testified by the plaintiffs and Eastman that they understood Farr was to draw the lease for the defendants and as their attorney. There was no evidence that it was referred to Farr to decide on the form of the lease, except the fact that he was one of the subscribers. Printed forms of leases, corresponding in form with that which was afterwards executed and tendered by the defendants, were brought into this meeting by Henry and lay there on the table open to inspection ; but they were not presented to the meeting as the form in which the lease was to be given, nor adopted or amended by the meeting, and the plaintiffs testified that they did not read or understand what the terms and conditions- of the blanks were. On the 28th of November, 1865, the draft of a lease was made at Littleton by E. W. Farr, taken to Boston, there executed by the defendants, and sent to Eastman at Littleton. The particular time when it was executed and sent to Eastman did not appear, but it was received by Eastman not many days after the 28th of November, 1865. Since the lease was received by Eastman the word " two ” in this lease has been erased and the word " thirty ” substituted by direction of the defendant Henry. A copy of the lease which is marked A, is to be made part of this case. There was no evidence that any steps were taken by the subscribers in reference to the acceptance or rejection of the lease until the 9th of December, 1865, when Eastman presented the lease to a meeting of the subscribers, who then decided that they would not accept the lease, because as they said, it did not conform to the terms of the subscription. They objected generally that it did not agree with the terms of the subscription, but their principal objection appeared to be to the reservation of one fifth of the oil, which was called the royalty. There was no evidence to show what notice, or that any notice, was given to the defendants of the action of the subscribers in rejecting the lease, till the 18th of December, 1865, when the defendant Henry was present with the plaintiff George B. Beddington, Cyrus Eastman and others, and Beddington and Eastman informed Henry that the lease was not sufficient, and that the subscribers would not accept it. About the first of January, 1866, the defendant Henry met Cyrus Eastman, the plaintiff George B. Beddington, and other subscribers. At this meeting the subscribers insisted on their objections to the lease, and were told by Henry that the defendants could not obtain a release of the royalty, and could not give a lease without that reservation. It was then proposed that Henry should endeavor to sell one half of the ten acres for $2500, to be paid to the subscribers, and the subscribers proposed to take the $2500, and a lease of the other half on the terms of the lease which had been drawn, but it was stipulated that this arrangement should not affect the right of the subscribers to insist on a lease according to the terms of the subscription. Henry was to have about thirty days to negotiate the sale and Eastman offered to assist in obtaining a purchaser. Henry did not effect a sale, and about the end of February met the plaintiff George B. Beddington, and told him he could not then make a sale and wished the matter might rest a while, as he thought in the spring he could sell. On the 11th of April, 1866, the plaintiff George B. Beddington, Cyrus Eastman, and other subscribers met the defendant Henry, and Beddington for the plaintiffs demanded a lease that would agree with the terms of the subscription. Eastman also demanded a like lease for himself and those whom he represented. Henry said it was out of his power to give such a lease as was demanded ; that he could not obtain a release of the royalty. Eastman then asked Henry if he was willing to pay back thé money to the subscribers. He said for his own part he was willing, but he could not answer for Moulton, who was then in Boston, and requested delay for the purpose of consulting with Moulton. There was no agreement to give him time, but he requested that a suit might not be commenced immediately, and was told that there would be no occasion for haste in suing. He then said he should be round in about two weeks, and in the mean time would write to Eastman. On the second day of May, 1866, the plaintiff George B. Reddington and Eastman met the defendant Henry, and Henry told them he had been to Canada and could then give a lease according to the subscription. Reddington and Eastman told him it was then too late; that delay had not been given him for that purpose, but to obtain the money ; that they wanted the money back. Henry then demanded the subscription book, which was refused, but he was offered a copy. The subscription book, since it was delivered to the subscribers on the 27th of November, 1865, has remained in their possession, and has never been tendered to the defendants; the lease has also been in their possession, and has not been offered to the plaintiffs since it was received ; but it has been altered, as before mentioned, by direction of Henry. Before the 11th of April, 1866, the premises agreed to be leased had declined in saleable value, and at that time had no market value as oil lands. The plaintiffs took no measures to examine the land, and had no information in respect to it except what was derived from common report, and the representations of the defendants. After the evidence on the part of the plaintiffs was concluded, the defendants moved for a nonsuit, and made the following exceptions to the case of the plaintiffs. 1. The lease furnished by the defendants to the plaintiffs was a compliance with the contract. 2. The action of the plaintiffs after the lease was furnished was an election to adhere to the contract. 3. The evidence shows no rescinding of the contract so that this action can be maintained. 4. The offer of the defendants to furnish a lease such as the plaintiffs had requested, was a compliance with the contract under the circumstances. The court denied the motion for a nonsuit, whereupon a verdict was taken for the plaintiffs by consent, subject to the opinion of the court. The questions arising on the foregoing case were reserved and transferred. referred the court to the following authorities in support of various positions by them assumed : Story on Conflict of Laws, 300 ; Bouvier’s Law Dictionary, vol. 2, p. 16 ; Bacon’s Abridg. Lease ; Cruise’s Digest, title 32, chap. 5 ; Weeks v. Uobie, 42 N. H. 316; Hunt v. Silk, 5 East 449; Conner v. Henderson, 15 Mass. 119; Sanborn v. Osgood, 16 N. H. 112; Kimball v. Cunningham, 4 N. H. 502 ; Evans v. Gale, 17 N. H. 573 ; Coolidge v. Brigham, 12 Me. 247 ; Perleyv. Balch, 23 Pick. 243. referred the court to the following cases : Little v. Paddleford, 13 N. H. 167; Judson v. Wccas, 11 Johns. 525 ; Cíate v. Robinson, 2 Johns. 595 ; Line v. Stephenson, 5 Bing. N. C. 183 ; Frazer v. Sley, 2 Chitty Rep. 646 ; Barrett v. Lynch, 5 B. & C. 589, 12 C. L. 327 ; Webb v. Stone, 24 N. H. 282 ; 12 N. H. 205 ; Hrew v. Claggett, 39 N. H. 431; Brown v. Uahurin, 39 N. H. 156 ; Hazeltine v. Batchelder, 44 N. H. 40; Jenkins v. Thompson, 20 N. H. 457 ; Gillett v. Mayard, 5 Johns. 85 ; 1 Caines’ Rep. 46 ; Raymond v. Barnard, 12 Johns. 274.