Pinner v. Sharp. have the refusal, in case he could get his brother-in-law to come; he said this in the hall; we were then alone; he wanted the refusal for six months, for $50; he said nothing as to the price for which he wanted the refusal; nothing was said by either, at that time, as to terms or conditions; nothing about a mortgage; we did not bargain for the farm; I did not tell him in what way I wanted the $26,000 paid; we were conversing five minutes before he began to write; I do not think he spoke to me while writing, further than to say it took a very clear head to write such a writing; after the writing was done, he read a little part of it, and wanted me to sign; I do not remember how much he read to meI do not think as much as two pages; I did not notice at the time that he did not read the whole of it; he read a little, and said the rest was not binding; I could not say positive that he did not read the whole of it; I paid no attention to it; I am sure he told me it was a refusal for the farm before I signed it; Mrs. Sharp was not present during the writing; I signed the paper as a refusal of the farm for $50." The foregoing statements exhibit briefly the substance of their contradictory stories. Their testimony is extensive and minute. It is unnecessary to review it in detail. The paper was left by Pinner at the clerk's office. Sharp says he first learned the conditions of it from Mr. Van Doren, in August following, or the last of July, who then told him where it was, and what it contained. The complainant has offered evidence to contradict this, and to show that Sharp said after Pinner had left, on the day the contract was signed, that he had given the refusal for the price of $20,000. The real estate agent, Van Doren, testifies that he saw Sharp at the depot that afternoon with Pinner, and that he thinks he told him that he had sold the refusal for $50, and for that price, but he does not speak positively; and I am satisfied, from the other evidence in the cause, and from his mis-recollection of other particulars to which he speaks, that he did not see him then, and that Sharp's story, that he first learned Pinner v. Sharp. the details of the paper from the copy of it obtained from the clerk, may be true. Several witnesses have testified to the value of the farm when this contract was made. It appears satisfactorily, I think, that it was worth $26,000, the sum originally asked. Witnesses were also sworn to impeach Pinner's character, but without success. Their testimony on that point, is illegal in kind, and weak in degree. He describes himself as a Prussian by birth, and as a resident of this country since 1851, engaged in the business of selling patents. Being unmarried, he did not want the farm for himself. His testimony is clear, positive, and consistent with itself, comparing, in these respects, by no means unfavorably with Sharp's. In examining the evidence of both, as taken before the master, and without knowledge or observation of either, I am unable to say with confidence, where or what the truth is. It is difficult to see how a man of mature years and average sense, as Sharp must be presumed to be, could receive money and execute a paper for the refusal of his farm for six months, relying upon the assurance of the stranger who wrote it, that it would not be binding. It is little less to be wondered at that he signed at all, a document drawn by a stranger with interests adverse to his own, without reading it himself; without submitting it to an adviser, and without keeping a copy. That he did so, however, is certain. The latter facts may serve, perhaps, to make it more credible that he signed it upon a general assurance and belief of its purport, and without attending to a possibly hasty, imperfect, or unintelligible reading. But this is not to be accepted without plenary proof. Sealed instruments, executed voluntarily, by competent parties, are not to be lightly impeached. To set aside the contract made in this case, the fraud or deception set up must be clearly and conclusively proved. The presumptions are against it. This, however, is not a suit by the defendants to have the contract annulled, but an application to the extraordinary jurisdiction of equity to enforce it. A contract, though valid in law, and sufficient for the recovery of damages, may not be such as Pinner v. Sharp. equity will decree to be performed. It rests by the familiar rules in the sound discretion of the court, to enforce it, or leave the parties to their remedies at law. This discretion is not the exercise of an arbitrary will, but of judgment guided by principles and reasons. In the present case no special equities are presented by the complainant. The original suggestion that his relatives in Europe were coming to occupy the farm, is substantially withdrawn. It is apparent from the contract itself, that the complainant had ulterior ends. He wants it only to sell again, and because its value is greater than the price he is to pay. The injury, if any, is entirely pecuniary, and can be covered by damages at law. The contract is unilateral, and not mutual. It binds the defendants to convey, but not him to take. Optional contracts are not favored in equity, though if founded on consideration, and free from objections in other respects, are enforced. The provisions of this contract are unusual, and favorable to the complainant and unfavorable to the defendants, both as to conditions and price; and this disparity is apparent on its face. The price is less than could easily have been obtained at a prompt sale and on ordinary terms; and while I cannot regard the price as inadequate or the bargain as unconscionable in the sense of the law, they are not without influence in connection with the other facts of the case. The circumstances attending its preparation and execution, as related by the complainant himself, are well calculated to engender distrust. It is difficult to see how, in the space of that single and limited interview, this bargain, widely different from that originally proposed, and with peculiar details, could have been deliberately and intelligently made. As to the defendant, Mrs. Sharp, it is admitted it was not. Whatever discussion and consideration were had, were necessarily hasty and brief. Sharp, himself, was evidently far less than the equal of the complainant, by whom the contract was drawn, if it be true that its provisions were then and there conceived and arranged. While the defendant may perhaps be liable at law for his rash and ill-advised acts, and Pinner v. Sharp. bound by his bargain however indiscreet, I cannot regard the complainant, upon his own statement of the extraordinary circumstances of the case, and the hurried nature of the transaction, excluding the customary deliberation and advisement that would have placed his bargain beyond suspicion and impeachment, and such as a prudent and fair-minded man would have allowed, as entitled to the aid of this court in securing the fruits of his remarkable persuasiveness and skill. The positive evidence of the defendants goes to confirm this conclusion. Another reason for leaving the complainant to his action at law is, that his bill seeks a decree against Sharp and his wife. The land was not hers. In Young v. Paul, 2 Stockt. 404, which was a suit for specific performance, Chancellor Williamson says: "It is objected that the wife is not a party to the bill, and that no decree can be made against her to execute the deed. No decree could be made against her if she were a party. If she had actually signed the agreement with her husband, it would have been absolutely void as to her, and no suit at law or equity could be maintained against her upon such an agreement. A feme covert cannot make any contract, either with or without the consent of her husband, except as to her separate estate. Our late statutes respecting the rights of married women do not affect this principle of the common law." In Hawralty v. Warren, 3 C. E. Green 124, where the complainant in his bill for a conveyance asked a title requiring the execution of the conveyance by the wife, and it ap peared that the wife was unwilling to convey, Chancellor Zabriskie says: "The court will not order a defendant to procure a conveyance or release by his wife, or require him to furnish an indemnity against her right of dower, unless in cases of fraud, where her refusal is shown to be by procurement on his part; and that, in case of a mere optional contract, it is much better to leave the party to his remedy at law." I shall advise, in this case, that the bill be dismissed. CASES ADJUDGED IN THE COURT OF CHANCERY OF THE STATE OF NEW JERSEY. FEBRUARY TERM, 1873. . RUCKMAN 28. DECKER and others. 1. An agreement by R. to join with W. in the business of planting and selling oysters, by which R. was to find the capital and W. to go to Virginia and plant and buy oysters, to be sent to R. in his vessels to New York for sale, each to have one-half of the net profits, is a partnership. 2. On the termination of such partnership, planted oysters remaining in the beds after payment of all partnership debts, are the common property of both partners, of which, as in case of any personal property held in common, one tenant in common cannot dispose of the share of the other without his authority. 3. If such tenant in common turn over such property to a firm of which he becomes a member, such firm is accountable to the other tenant in common of the property, for the value of his share of the property so turned over and used by the new firm. 4. The purchase of the property of one man from another who is in possession of it, without authority from the true owner to sell it, will not change the title, nor protect such purchaser against the true owner. The doctrine of equity, which protects a bona fide purchaser without notice, only applies to a purchaser of the legal title, without notice of the equitable title of a third person. And in such case notice to one partner would be held as notice to the firm. 5. In equity, the defence of the statute of limitations may be set up by plea, answer, or demurrer; but if not set up in any way in the pleadings it cannot avail. 6. The admissions of one partner are evidence against the others, in a suit brought against all for partnership liabilities. |