« AnteriorContinuar »
to him personally. After the execution of the sublease, and on August 25th, learning that the alterations were proposed to be made without procuring the previous consent of the landlords in writing, he notified his subtenant, in writing, not to cut any openings in the outer walls of No. 157 Market street. The Goerke Company sets up the parol permission of Alfred L. Peer, one of the lessors, to the erection of the bridges as being a waiver of the covenant and an estoppel against equitable relief. It is claimed that this permission was given by Alfred L. Peer, in Varch, 1902, to a Mr. Safford, an employe of the company, in a conversation between them, in March, 1902, several months before the sublease, when Mr. Safford called on Alfred L. Peer, ostensibly, as Safford says, with a view of obtaining the price of the property, and in the course of which conversation the verbal permission now set up was said to have been given. Mr. Alfred L. Peer denies that any such permission was given, and says that at that conversation, when the matter of bridging the alley was mentioned, he directed Mr. Safford to inform the Goerke Company that the owners of the property would consider an amount of $2,500 a year for the privilege, and that no permission was given. In this account of the conversation he is corroborated by his wife, who was present. In the statement that no permission to bridge the alley and connect the buildings was then given or intended to be given on behalf of either of the owners to the Goerke Company, and that Mr. Goerke, the president of the company, did not so understand and did not act on any such understanding, complainants are corroborated by the proof of two subsequent conversations held with Mr. Goerke himself. The first occurred about a week after Mr. Safford's interview, when Mr. Goerke called on Mr. Alfred L. Peer, at the house of the latter in Newark, and then received from him, as Alfred L. Peer says, the same answer to his application to know what money consideration the owners would take for bridging the alley. The second conversation occurred between Arthur M. Peer, the other complainant, who, on April 15th, 1902, came to Newark for the express purpose
of seeing Mr. Goerke in relation to this matter, and saw him, as he says, at his brother Alfred's house, where he gave substantially the same terms. Goerke denies that he ever had either of these conversations, and also denies that he was ever in Alfred L. Peer's house, in Newark, between the time of Safford's interview and September, 1902, after the first bridge was built. That Goerke was at Alfred L. Peer's on both occasions between these dates, is to my mind satisfactorily established—as to the first, by the evidence of Mr. and Mrs. Alfred L. Peer, and as to the second interview by their evidence in addition to that of Arthur M. Peer. That the conversation of Mr. Alfred L. Peer with Safford was not taken or understood by Goerke to have been intended as a permission which was intended to waive, on the part of either lessor, the right to require the written consent under the lease, and was not acted on as such permission, is further indicated by the circumstance that the Goerke Company did not procure the sublease until several monihs later; that the sublease itself indicates that the consent of the lessors had not yet been procured, and that up to the time of the answering affidavits in the suit Mr. Goerke did not set up this alleged permission given through Safford, in March, as his justification of the erections. No mention was made of it at either of his conversations in March or April, 1902, nor at the first conversation he held with Alfred L. Peer, in September, 1902, when the latter charged him with having violated the lease. Treating the question of the parol permission given by one of the lessors as an issue of fact, I conclude, on the evidence, that it has not been proved. But as the permission relates to the use of lauds, and if proved will give to the defendant company an easement of ingress and egress into complainants’ building through its upper walls for the whole term of their sublease, it comes within the operation of the statute of frauds and the rule settled in Lawrence v. Springer, 49 N. J. Eq. (4 Dick.) 289 (Court of Errors and Appeals, 1892). In that case, Chief-Justice Beasley, after declaring his opinion to be that easements cannot be imposed on lands by parol evidence,
and that parol licenses cannot have that effect in equity merely because they have been executed, says (at p. 297) that the parol contract can never be enforced in equity until it be proved to the point of demonstration, and unless it also appears that the repudiation of it must work irreparable injury. In this case the parol permission has not been proved, and the fact that the sublease reserved to the company the right to terminate its lease if the consent is not obtained according to the terms of the lease (i. e., a written consent is not obtained), is cogent, if not conclusive, evidence as well on the point that the subtenant did not rely on Safford's permission as the ground for cither taking the lease or altering the building, as upon the point that the removal of the bridges is not an irreparable injury. The fact that the entrance to the upper stories, which existed when the sublease was made, has been closed since the sublease by the action of the parties thereto, without any consent or communication with the lessors, cannot affect the right of the lessors to be protected against alterations of the building and openings of the walls under the express covenants of the lease. In disposing of this branch of the case I have not considered the point raised by complainants' counsel, that parol permission given by one lessor is not effective under the covenant and that the waiver of both lessors must be shown, but I am inclined to think the objection well founded.
It was contended at the hearing that the complainants' remedy was at law, and that an injunction, mandatory or other, could not be granted, because no irreparable injury to complainants had been or would be caused, and complainants' damages were the proper subject of money compensation by action for damages. It is, however, settled law that agreements restricting within reasonable limits the use of premises may be made upon their sale or lease, and that when such restrictions are made, they are considered to be part of the consideration upon which the vendee or lessee receives the premises or their possession. The vendor or lessor is therefore usually entitled to the specific performance of the lawful agreements relating to the use or enjoy
ment of the property sold or leased, and the equitable jurisdiction to enjoin the violation of the agreement does not depend on irreparable injury or lack of adequate relief at law, but is founded on the right to specific performance of contracts. Kirkpatrick v. Peshine, 24 N. J. Eq. (9 C. E. Gr.) 206 (Chancellor Zabriskie, 1873), states the principle in relation to covenants in the sale of premises, and where positive stipulations as to acts of waste are made between the parties to a lease, either party has the right to insist on the literal performance of the contracts, irrespective of the question of damages. Kerr Inj. *83, 440, 441; Steward v. Winters, 4 Sandf. Ch. 587, 592 (1847); and as to defendant company no action at law could be brought on the covenant. Tayl. Land. & T., supra.
Independent of the jurisdiction to enforce covenants, the injunction in this case may properly be granted on the ground that the changes made by the defendant company are material alterations of the building, which constitute waste. Windows admitting light are discontinued and openings for doors substituted, a material difference in the easement in the adjoining alley. A subtenant may be enjoined from committing waste. Farrant v. Lovell, 3 Atk. 723. Complainants are therefore entitled to a mandatory injunction requiring the removal of the bridges from the walls and alley and the restoration of the windows, and a perpetual injunction against the erection of bridges in the future. On the application for preliminary injunction the defendant company, as a condition for denying it, gave a bond to pay damages, to be assessed by this court. I will hear counsel on the order or decree to be made in reference to the damages.
1. Where a father and son owned property together, which was largely acquired through the business ability of the son and direct applications of his money, the legal title to the property being taken in the name of the father, on condition that at his death it should be left by will to the son, but was in fact left by will to the son's stepmother, an agreement between the stepmother and the son that at her death, in consideration of the son making no claim against his father's estate, she would leave the property to the son by will, constituted a family arrangement or compromise, which, being founded on sufficient consideration and afterward acted on in good faith, will be enforced, though resting in parol.
2. The abandonment of any claim by the son against his father's estate, and the enjoyment by the stepmother during her life of the use of the property, constituted a valid consideration for the contract between the stepmother and stepson.
3. Where an agreement was entered into between a stepmother and stepson that, in consideration of his abandonment of any claim against his father's estate, she would leave certain property to him by will at her death, which was acquiesced in by both until her death, but not complied with by her, so that it would be impossible to restore him to the situation existing at the time of his father's death, an action at law for damages against the stepmother's estate would not afford an adequate remedy, and specific performance will be decreed in order to prevent a fraud.
4. In a suit against a decedent's estate to enforce specific performance of an oral agreement to devise land to complainant, in which decedent's executors are parties, complainant's testimony as to transactions with decedent, is inadmissible, under P. L. of 1900 p. 363 § 4 relating to evidence; but the agreement being based on a promise of the deceased father of complainant to leave the property to the son by will, which he failed to do, complainant's testimony as to transactions with his father is admissible, the father's executors not being parties to the suit.
5. Where an oral agreement between decedent and complainant to devise land distinctly related to the property received by the decedent from her husband's will, the contract is not too vague and indefinite to be enforced, on the ground that the property was not described.