Loudenslager v. Woodbury Heights Land Co.

The opinion of the court was delivered by Dixon, J.

The judges who vote to affirm the decree in this case approve of the reasons given therefor by the learned vice-chancellor who advised the decree. But since in his written opinion he left open the question whether the decree should be for the whole “ profit ” made in the transaction which was the subject of controversy, or only for one-half thereof, and the decree signed is for the whole, it is incumbent on us to state further our reasons for maintaining this feature of the decree.

The claim that the defendant should be held for only one-half of the profit is based upon the evidence that, by the original arrangement between the defendant and Joseph B. Roe, the latter was to have one-half of the profit, and that before this suit was brought the defendant had paid to Roe his share.

We think that Roe’s position with respect to the lands embraced in the options, and also his relations to the complainant, were the same as the defendant’s, and that he could not be permitted, in equity, any more than could the defendant, to make a profit out of the sale of those lands to the complainant, unless the circumstances were fully disclosed to the complainant.

Therefore, when the defendant had received from the complainant the whole ostensible price of the lands, and had thus become bound to restore to the complainant the difference between that and the real price, he could not, and did not, lessen his responsibility by paying over part of the money to one who had no more right to it, as against the complainant, than he himself had.

*413 To reverse and modify — Depue, Garrison, Bogert, Hendrickson, Nikon — 5.

For affirmance — The Chief-Justice, Collins, Dixon, Lippincott, Van Syckel, Adams, Vredenburgh — 7.

For reversal — Gummere, Ludlow — 2.