LEE BUILDERS, Inc.
WELLS et al.
Action by assignee of purchaser against vendor for specific performance of contract for sale of land. The Court of Chancery, Sussex County, 92 A.2d 710, held assignee of purchaser was entitled to decree of specific performance. On vendors' motions for new trial or to reopen and for leave to file supplemental answers setting forth new matter, the Court of Chancery, Sussex County, Bramhall, V. C., held that even though commissioners of town revoked assignee's permit to build supermarket on land and also passed zoning ordinance by which land in question was restricted to residential use, assignee of purchaser was entitled to specific performance.
Motions for new trial and to reopen are denied.
Action by Lee Builders, Inc., Assignee of J. Rowland Morgan, against William F. Wells, Jr. and Catherine C. Wells, his wife, and [33 Del.Ch. 440] Sarah E. Wells, widow, for specific performance of contract for the sale of land.
This court in an opinion dated November 26, 1952, held that plaintiff was entitled to a decree for specific performance. Subsequently, defendants filed a petition for re-argument, which was denied. Defendants filed motions for new trial or to reopen and for leave to file supplemental answer setting forth new matter. This opinion relates to these motions.
Albert W. James and H. James Conaway, Jr., Wilmington, of the firm of Hering, Morris, James & Hitchens, Wilmington, for plaintiff.
Daniel O. Hastings and Clarence W. Taylor, Wilmington, of the firm of Hastings, Stockly & Walz, Wilmington, for defendants.
The new matter which defendants desire to present in support of their motions is substantially as follows:
The Commissioners of the Town of Elsmere after the granting of the building permit to plaintiff, permitting plaintiff to erect a supermarket on the premises which this court has held that defendants must convey to plaintiff, passed an ordinance providing for the revocation of building permits in which work has not begun within a stated period of time after the granting of the permit. Based upon this ordinance the building permit granted to plaintiff was revoked. A few months before this case was tried The Commissioners of the Town of Elsmere also passed a zoning ordinance in which the land in question was restricted to residential use. Thereafter, plaintiff brought an action against The Commissioners of the Town of Elsmere to restrain the revocation of plaintiff's permit. Defendants aver that the zoning ordinance and the revocation of the building permit above referred to were unknown to defendants at the time of the trial of this case.
Defendants now contend that, in view of the allegations contained in the motions and supplemental answer which defendants desire to file, specific performance
should not now be decreed. They further assert that since the only purpose of plaintiff in purchasing the land in question was to construct thereon a supermarket and [33 Del.Ch. 441] that since The Commissioners of the Town of Elsmere have restricted the property in question to residential use, and have revoked the building permit issued to plaintiff prior to the passing of the zoning ordinance, plaintiff now has an adequate remedy at law and this court does not now have jurisdiction, or if it should have jurisdiction, should not in its discretion decree specific performance.
It seems to me that defendants have assumed as facts questions which have not as yet been finally determined. Assuming that the petitions and supplemental answers of defendants correctly set forth the actions of The Commissioners of the Town of Elsmere with respect to the property purchased by plaintiff from defendants, the question of their right to do so has not yet been determined. That question is now pending before this court for determination in another suit. Whether or not plaintiff will succeed in its efforts to restrain The Commissioners of the Town of Elsmere from revoking the building permit is not an issue in this case and cannot be determined here. I cannot in this action accept as facts matters which are in dispute in another action which has not yet been determined.
Assuming, contrary to this opinion, that the allegations of defendants are facts which must be accepted here, defendants still are not entitled to relief. I say this for two reasons: first, plaintiff's action is based upon a contract for the sale of real estate, by reason of which plaintiff will be presumed to have a peculiar interest therein, so that damages for breach thereof would not be an adequate remedy; secondly, while the facts averred by defendants would place a greater burden upon plaintiff, the burden placed upon defendants would not be increased.
It is true that specific performance will not be granted where plaintiff has an adequate remedy at law. Title 10, Sub-Chapter III, Sec. 342, of the ...