In this case the complainant contracted to sell to the defendant and the defendant agreed to purchase a plot of land known as No. 2957 Boulevard (Jersey City), with the building thereon named “The Elizabethian,” for the sum of $63,250, payment to be made and secured as follows:
On the execution of the agreement................ $2,000.00
Cash on delivery of the deed...................... 8,250.00
“Subject to first mortgage now encumbering the property held by the Colonial Building and Loan Association in the sum of.......................... 36,000.00”
Subject to a second mortgage in the sum of........ 4,400.00
By the execution of a third bond and mortgage covering the property, &c........................... 12,600.00
$63,250.00
The difference between the parties arose on the clause above quoted touching the $36,000 mortgage.
The scheme of the building loan is as follows: When the shares of stock reach the value of $200, non-borrowing members become entitled to receive $200 in cash per share; and borrowing members, whose stock is pledged as collateral for mortgage loans, are entitled to have their mortgages discharged.
At the time fixed for the closing of the title about eighteen hundred dollars had been paid on the stock; and this sum, for the purpose of calculating the interest, as well as all subsequent payments on account of the stock, by the plan, are deductible from the $36,000, and interest is payable on the balance thus ascertained. Otherwise, as I read the bond and mortgage, the debt remains $36,000.
One thing apparently not foreseen by the parties, and upon-which their minds did not turn, was the adjustment to be made of the moneys paid in on account of the shares of stock, as ■well as the assignment thereof to the purchasei1, subject to the collateral pledge.
Bearing in mind that the contract provides that the conveyance shall be subject to the building loan mortgage "now encumbering the property,” and did not provide for the placing of a new mortgage for that amount upon it, and, turning to the condition of this bond and mortgage, which provides that the mortgage shall be paid "by the payment of one dollar per month” per share on this very stock standing in the name -of the complainant and pledged as collateral, it is quite unlikely that Mr. Harris intended to continue paying on stock standing in the name of Mrs. Street, and not in his own, until the mortgage was canceled or the shares matured. And it is also quite unlikely that Mrs. Street contemplated that her $1,800 were to remain invested in this fashion until the shares matured or the mortgage was canceled. Mr. Harris knew of the methods of building loans in the furnishing of what are termed "straight mortgages” and “install
The parties had conferences with the idea of settling, but seem to have been unable to agree. Mrs. Street' was willing to let the $1,800 he added to her third' mortgage; but Mr. Harris seemed to think that a much larger first mortgage would make the property more readily salable; and he declined to accede to‘this proposition.
I do not deem it necessary to go further into this matter, beyond pointing out that the minds of the parties did not meet on this contract, and, therefore, a court of equity should not enforce it. Braentigan v. Edwards 38 N. J. Eq. 542. I will advise a decree that tlie bill be dismissed.
This same reasoning also leads to a dismissal of the counterclaim of the defendant, and I will so advise.
After counsel received tlie memorandum of the court deciding the cause, 'defendant's counsel applied 'for a decree that the premises be conveyed to him on complainant’s version of the contract. ' '
MEMORANDUM ON FOREGOING APPLICATION.
The' application of the defendant 'for leave to take the property after 'tlie court lias decided tiré case, but before decree signed, I think presents a. situation somewhat analogous to the rule in equity that after the court has announced its decision complainant cannot dismiss'his bill,' although no decree had been'entered
In this case the complainant, before filing the bill, not only offered to perform according to her conception of the contract, but to allow defendant some $600 to cover his expenses in procuring a loan of $36,000, to conform to his version of the contract, and also offered, as a second proposition, to add the $1,800 paid into the building loan to her third mortgage and assign the certificate of stock and pass-book to him. This he refused.
He at filrst agreed to take the $600 proposition, but, later, claiming that he, was also entitled to $500 more for loss of time, complainant declined to accede to his demand, and filed her bill. He answered, and by way of counter-claim insisted that the contract should be performed to the letter according to his version.
The substance of his final demand before suit brought was that, bjr reason of there being a building loan mortgage upon which $1,800 had been paid on the stock assigned, she should either retain the stock, treating the mortgage as $36,000, or, if he took the stock and included its value in her third mortgage, she should allow him $1,100 abatement of the purchase-money, because he desired that a first mortgage should be on the premises for $36,000.
An ordinary fair-minded business man would have accepted complainant’s offer to add the $1,800 to her third mortgage, but this he declined to accede to, and the cotirt, being unable to make a contract for them, announced in a memorandum to counsel that both bill and counter-claim should be dismissed. Now, having gambled on the decision of the court, and lost, he expresses his willingness to accept a deed on the complainant’s version of the contract, and asks that the court so decree.
His whole course of conduct has been inequitable. In his counter-claim he does not offer to' take the property with an abatement of the purchase price; thus he held himself plainly
Apart from the fact that the court should not now listen to his .plaint for want of equity in his course of conduct prior to the decision of the cause, to hear him now would encourage trifling with the court, which should not be tolerated.
T will, accordingly, advise a decree in accordance with the views expressed in the previous memorandum.