Lanford v. Moore

Urner, J., delivered the opinion of the Court. The decrees in this case dismissed on demurrer a bill of complaint which alleged that the plaintiff, on November 8, 1921, entered into a written agreement with Tom Moore, one of the defendants, acting nominally for his sister, Mrs. Florence Drake, but really for himself, to* purchase certain real estate in Montgomery County which Moore, as the result of negotiations conducted by the plaintiff, contracted to buy for himself in his sister’s name from Mrs. Nellie Jones Blick, another of the- defendants, but that Moore defaulted in his purchase from Mrs. Blick for the purpose of defrauding the plaintiff of his rights under the agreement by which Moore had sold him the property, and that for the same purpose Moore subsequently bought from Mrs. Blick an undivided one-half interest in the land, and that he was allowed to* apply on the new purchase a payment which he had made on account of the contract under which he would have acquired the entire title. It was further alleged in the bill that the plaintiff’s written agreement for the purchase of the property from Moore omitted to state the total price of $13,000, upon which the plaintiff and the defendants, Moore and Mrs. Blick, had agreed, and that the omission of the price from the agreement was the result of mutual mistake or o-f Moore’s fraud or inadvertence. A tender of full compliance with the terms of his agreement was made by the plaintiff in the bill of complaint, which also averred that he has been in possession of -the property since the date of .his contract of purchase, but has been formally notified by the defendants to vacate.

The bill prayed for a reformation o*f the plaintiff’s agreement with Moore, in regard to the statement of the full purchase price, and for the specific ⁴²³ enforcement of the agreement as so reformed. It was also prayed that, pending a decision of the case, an order be passed restraining the defendants from interfering with the plaintiff’s possession, and that he be permitted to deposit in court the amount of the cash payment required by his contract of purchase and a promissory note secured by mortgage for the deferred payment for which it provided. The prayer for relief further proposed that if it were determined by the court that Mrs. Blick’s husband and Mr. Moore’s wife, who were made defendants, should not be compelled to join in a deed to the plaintiff for the property claimed, the purchase price be abated to the extent of the value of their inchoate rights of dower. The agreement sought to be reformed and enforced was exhibited with the bill.

There is a reference in that agreement to one of “even date” “between Mrs. Florence Drake and Nellie Jones Bliek” for the sale of the same property. Because there was no allegation in the bill of complaint that the plaintiff had entered into any contract with Mrs. Blick and her husband, or with Mrs. Moore, the bill was dismissed as to them by decree of the lower court, after a hearing on the demurrer, but as to Mr. Moore the court retained the bill for the purpose of permitting the plaintiff to amend it by inserting an offer to accept, for half the original purchase price,, the undivided half interest which that defendant has acquired in the property mentioned in the agreement sought to be enforced. No advantage having been taken of the opportunity thus afforded, the bill as a whole was dismissed. From the decrees of dismissal the plaintiff has appealed.

The purpose of the bill being to compel the performance of a contract between designated parties, the court below was clearly right in deciding that the bill was not maintainable against persons by whom no duty under the contract was alleged to have been assumed. The argument for the appellant was partly based upon the theory that the default of Moore as to the agreement ⁴²⁴ under wbicb be is said to bave purchased the property be contracted to sell and convey to tbe plaintiff was a fraud upon him, in wbicb other defendants participated. There is no sufficient averment in tbe bill that the defendants other than Moore were parties to tbe alleged fraud. It is charged that Moore defaulted under bis first contract, with Mrs. Bliek and her husband, and “entered into a different contract” with them whereby be agreed to buy an undivided' one-half interest in tbe property, “wbicb said second contract was made for tbe express purpose of endeavoring, to defraud” tbe plaintiff “out of bis rights under” the contract with Moore filed as an exhibit with tbe bill of complaint.

This allegation imputes to Moore a purpose to defraud tbe plaintiff by tbe breach