Eppig v. Gruhn

[1] I have no • hesitation on the evidence in deciding that the plaintiff makes out a case for the intervention of a court of equity to decree specific performance. The defendant, who had purchased the property under contract dated October 1, 1914, changed his plans. He did not want the property; he asked adjournment of the closing day; he asked to be relieved of his contract. The matter was adjourned from time to time until January 26, 1915. On the day before, January 25, 1915, defendant for the first time notified the plaintiff of his objection to the title because of an encroachment of part of the front of the building over the street lines. There was no question

There is some claim that plaintiff refused to recognize the encroachment as an objection to the title, and it may be that on the closing day the relations of the parties were a trifle strained by what plaintiff evidently regarded as bad faith on defendant’s part; but there can be no doubt that the offer to remove the encroachment was made at once, and in writing, on the same day. And the plaintiff did in fact proceed to remove it, and did remove it completely by March 3,. 1915, and so notified the defendant. Under all the evidence it is apparent that time was not an essential part of the agreement, at any rate as far as defendant was concerned, and I think equity would give the vendor a reasonable time to remove the objection and decree specific performance.

[2] If I am correct in this view of the case, the plaintiff executor has had an unfortunate experience in the courts. Immediately upon the rejection of the title, the defendant sued him in an action at law to recover the deposit paid on signing the contract and the necessary expense of searching the title. The plaintiff in that suit (the defendant here) necessarily alleged that upon the day fixed for closing he was ready and willing to take title. The executor answered, denying that Mr. Gruhn was ready and willing to take title. He set up an equitable defense, pleading that he has asked for a reasonable time to remove the objections to the title, which was not accorded him. He pleaded his readiness and willingness to carry out the contract, and, while he asked that the complaint be dismissed, he also prayed for specific performance. He served what is described as a "supplemental amended answer” after the encroachment had been removed, alleging the fact, and alleging that he has been at all times ready to carry out the contract,” and is now in a position to offer, and does offer, the plaintiff a good and marketable title.” It is true that the prayer for relief in this “supplemental amended answer” omits the demand for specific performance. But the nature of the pleading is plain. So far as it was a supplemental answer, the original pleading was still before the court, and there can be no doubt that the executor was at all times offering to perform the contract, and that he was insisting that Mr. Gruhn was not acting in good faith.

It appears that the issue raised upon the pleadings was noticed for trial at Special Term in equity. It is intimated that the prayer for relief in the “supplemental amended answer” omitted the demand for specific performance, asking only a dismissal of the complaint. But the pleadings were before the court, with the executor offering to'

However, the parties, having been turned out of equity, went to trial before a jury on the law side of the court. But when the executor attempted to prove that Mr. Gruhn was not acting in good faith, that he was not in fact ready and willing to close the title on January 26, 1915, the trial court refused to hear the evidence, on the ground that no such issue was presented, and directed a verdict in favor of Mr. Gruhn for the amount of his deposit and expenses. It will thus be seen that the executor, the plaintiff herein, has been so far denied the right to present his case in the action at law, or, more properly speaking, in the action commenced as an action at law, but which I think was properly triable in equity under the answer. In this situation he commences the suit at bar in equity for specific performance. He is confronted by the judgment in the trial before the court and jury, which the defendant here, Mr. Gruhn, insists is res adjudicata.

This is the more serious question in this case. The executor has appealed from the judgment in the former suit, but the appeal has not been argued, and the judgment is in full force and effect. Under the familiar principle that the judgment is conclusive between the parties, as to the facts litigated or which might have been litigated in the former action, the defendant here insists that it is a judgment that on the day set for closing the title he, the defendant, was ready and willing to perform, but that the executor plaintiff was not ready, willing, and able to perform. The judgment in the printed case on appeal is before me. I note that the executor has been denied the right to offer evidence in support of his case, and this upon Mr. Gruhn’s objection.

It may be that the appeal courts will reverse the judgment so rendered by direction of the court. But is it decisive on the issue submitted here ? If such is the rule, it would seem to result in the miscarriage of justice. The executor should, it seems to me, have been accorded a hearing in the former case, either in equity, to which he has resorted, or upon the law side of the court, to which he was sent. I think that, when it appears that the former litigation did not in fact determine the question presented in the second suit, the court in the second suit is called upon to decide the question. When the executor introduced the proceedings in the suit at law in evidence, and it clearly appears that his equitable claims we.rc excluded upon the objection of his adversary, where these facts appeared, and there is no controversy about them, I think the former judgment is not conclusive upon a court of equity in the second suit. The judgment in the first suit is the primary, but not the exclusive, guide. Clark v. Scovill, 198 N. Y. 279 , 91 N. E. 800 ; Lewis v. Ocean N. & P. Co., 125 N. Y. 348 , 26 N.

I think it would be an unfortunate commentary upon our forms of procedure if the litigant can in effect be denied his day in court by judgment which is the result of his being driven from one court to another, as plaintiff has been. For the reasons stated, the judgment will be for the plaintiff with costs.

Judgment for plaintiff.