Powers v. Hale

Gilchrist, C. J.

As to the inadequacy of the consideration, although mere inadequacy of price, independent of other circumstances, is not of itself sufficient to set aside a *152 transaction, yet it may induce the court to stay the exercise of its power to enforce the specific performance of a contract for the sale of land. Seymour v. Delaney, 6 Johns. Ch. 222 . Equity will not carry hard or unreasonable agreements into execution. There is a distinction between the power of settjng aside a contract and decreeing its execution. 1 Madd. Ch. R. 9. Howell v. George, 6 Johns. Ch. 222 . The court; has a discretion as to decreeing a specific performance. White v. Damon, 7 Vesey 35. And a decree for specific performance has been refused where the execution of the agreement would operate with considerable hardship on the defendant. Fain v. Brown, 2 Vesey 307. If articles of agreement are unfairly obtained, though not to such a degree as to set them aside, yet the court will not order their performance. 6 Johns. Ch. 226 . The power of awarding the specific execution of contracts for the sale of land, rests in sound judicial discretion, and will not be applied to cases that are hard or unfair or unreasonable, or founded on very inadequate considerations. Ibid. 226 .

A party who resorts to equity for a specific performance, must come with perfect propriety of conduct on his part. The plaintiff did not impart to the defendant the information he had acquired concerning the price for which the land could be sold. But this alone cannot be regarded as indicating fraud. There was no mutual trust and confidence between the parties which would render such conduct dishonest. Tenants in common of a vessel do not stand in such a relation to each other, that one would be bound to communicate to the other such information as he might acquire concerning the price for which the vessel might be sold. He is under no legal obligation to disclose that a third person had previously agreed with him to purchase the whole of the vessel at a higher rate, when he is contracting with his co-tenant for the purchase of his share at a certain price. Such was the decision in the case of Matthews v. Bliss, 22 Pick. 48 . But it was also held that if there were *153 any, though slight, false and fraudulent suggestion or representation, then the transaction is tainted with turpitude, and alike contrary to the rules of morality and of law. If the fraudulent representation was a motive at all inducing to the act, if it was one of several motives acting together and by their combined force producing the result, then the contract would be invalid.

A party w'ho has made a misrepresentation, even to a small extent, will not be entitled to a decree for specific performance. His conduct must be free from all blame, and he must be liable to no imputation. Sir W. Grant, Clement v. Tasburgh, 1 Jac. & W. 112. Wherever there is a concealment of a defect, either as to the title of an estate, its quantity, quality or condition, it will be a sufficient ground for resisting a decree for specific performance. Shirley v. Stratton, 1 Bro. C. C. 440. Telling an untruth, knowing it to be an untruth, with intent to induce a man to alter his condition, and his altering his condition in consequence, whereby he sustains damage, fulfils all the requisites to support an action for deceit, although the party telling the untruth intended no fraud or injury. Watson v. Poulson, 7 Eng. L. & Eq. 585. There seems to be no reason why this principle should not apply in equity.

The question, then, arises, whether there was any misrepresentation here on the part of the plaintiff. And upon that point, and also as to the inadequacy of the price, the weight of evidence is, both that the price was inadequate to a great extent, and that Powers did not make a fair representation of the condition and quality of the land. It appears that Powers, having ascertained that some of the persons living in the vicinity would give a certain price for the land, anticipated them, and procured the land for a price much less than he had reason to suppose others would give for it. The knowledge he procured he did not impart to the plaintiff, and the allegations in the answer are substantially proved. We think that the defence is sustained, and that the *154 bill should be dismissed. We shall direct the following decree to be entered.

Decree. It is declared that from the great inadequacy in the price for which the defendant contracted to convey to the plaintiff the lots numbered seven and eight, mentioned in the bill, and from the misrepresentations, made by the plaintiff to the defendant, of the condition and quality of the land, the contract to convey them, contained in the defendant’s bond to the plaintiff, ought not in equity and good conscience to be decreed to be carried into specific execution by the defendant. It is thereupon ordered and decreed than the bill be dismissed.

Before the decision of this cause the following question of costs was submitted to the court.

On the 8th of June, 1849, Hale, the defendant was notified to attend the caption of certain depositions, to be taken by the plaintiff; and on the 20th of June, a similar notice was served upon him. He attended at the place designated, in pursuance of the notices, but no depositions were taken on either occasion. His fees for travel and attendance amounted to the.sum of $15, which sum he alleged should be taxed for him as costs in the cause, whether the decree was in his favor or not. It is enacted by section 22, chapter 188 of the Revised Statutes, that if any party, after giving notice to the adverse party, shall neglect to take a deposition, the adverse party shall be entitled to recover twenty-five cents a mile for actual travel of himself or his attorney to attend the caption, by an action on the case.

Gilchrist, C. J.

The general principle to be found in the books is, that costs in equity are entirely in the discretion of the court. Jones v. Coxeter, 2 Atk. 399. And although this principle is somewhat modified in its application by the rule that the prevailing party is entitled to costs, yet it is *155 often necessary to exercise the general discretionary authority which the court possesses upon this subject. The costs of a motion refused, are not costs in the cause. White v. Lisle, 4 Madd. 226. And there seems to be no reason why the costs in question should be so considered. If the party had no other remedy for the loss of his time and travel, there would seem to be some reason for including them in the general costs of the cause. But as the statute has provided a sufficient remedy, the rights of the party are sufficiently protected by resorting to it. There is no reason to suppose that the statute intended to provide any other remedy for the recovery of such costs than that afforded by an action on the case. And the defendant’s application, must, therefore, be rejected, particularly in this stage of the proceedings.