#### Michel *v.*Halheimer *et al.*

*(Supreme Court, General Term, Second Department.*

May 12, 1890.)

Bet-Off and Counter-Claim—Contract to Sell Land.

In an action for partition of land purchased by defendant, and conveyed to plaintiff and defendant jointly; under an agreement between them that plaintiff should pay a certain- part of the purchase money and make certain improvements, an answer which alleges that plaintiff entered into the contract fraudulently, as a mere device to obtain the half interest in the land, and that he never performed and never intended to perform his part of the contract, states a good counter-claim.

Appeal from- special term, Kings county.

*490Action by Leopold Michel against Max Halheimer, Esther Halheimer, and ' Eachel Michel for a partition of lands in Brooklyn, upon an allegation that plaintiff and defendant Max Halheimer were tenants in common in equal shares. The defense was that in May, 1887, the appellant was the equitable owner of the lands under a contract for their purchase at the price of $9,000, whereas they were worth $14,000, and the plaintiff applied to the appellant to be admitted to a half interest in the purchase. ' Thereupon Halheimer and Michel, after negotiations, entered into a written agreement which provided that the title should be taken in the names of both, and that Michel should pay the remainder of the purchase money to the grantors, and should advance all the money necessary to improve the land by the erection of seven or more three-story tenement houses, which should be sold after their completion, and out of the proceeds both parties were to be repaid their advances and the profits equally divided. The erection of the houses was to be begun within six months after the sewer was laid in the street, and Halheimer was not to be required to lay out any money in connection with the enterprise. The deeds were taken in the names of Michel and Halheimer, pursuant to this contract. Michel failed to pay all the purchase money as he had agreed, and Halheimer paid half of it. The plaintiff never performed any part of this agreement, and did not advance any money to improve the property, nor in any way provide for the erection of the houses as agreed, although the sewer was laid in the street in August, 1888. The contract for the purchase was a valuable one, because the price at which the lots were to be purchased was about $5,000 below their value, and the only consideration for plaintiff’s admission into a half ownership in the purchase was his agreement to furnish money to buy and build. The answer alleges that the plaintiff entered into the contract fraudulently, as a mere device to obtain the half interest in the lands, and fully intending never to perform the stipulations on his part, and he afterwards willfully broke all the stipulations which he had made, and never performed any part of his contract. Also that there is no adequate remedy at law for the breach of the agreement, because the damages are indefinite. After the breach of the contract and the discovery by the defendant Halheimer of plaintiff’s dishonesty, defendant rescinded the agreement admitting the plaintiff to a half interest in the lands, and offered to restore the plaintiff to the situation he was in before entering into the agreement, and thereupon demanded a conveyance of the half interest the plaintiff had procured, which was refused, and upon this the defendant demanded such reconveyance as relief in this action. The court decided that the facts alleged by defendant Halheimer did not entitle him to any relief, and directed a verdict for the plaintiff, and defendant appeals.

Argued before Barnard, P. J., and Dykhan and Pratt, JJ.

*Charles*J. *Patterson,*for appellant. *Ira Leo Bamberger,*for respondent.

Pratt, J.

We think that a valid counter-claim is set up in the answer, and that defendant should have been allowed to introduce his proofs. If it be that, as a general rule, a failure to perform an agreement upon which land is conveyed will not afford ground to rescind the conveyance, an exception to that rule must arise when the remedy at law for the breach of the agreement would not give adequate relief. In the case at bar the contract for the improvement of the land is not sufficiently specific to enable a court to decree performance. Hor could the injured party prove damages with adequate precision. Ho one can tell exactly what profits defendant would have made had plaintiff carried out the contract with entire good faith. Perhaps no profits would have been realized, but defendant was entitled to the chance. For that supposed advantage he was willing to yield certain rights to the plaintiff. How that the consideration is withheld on which those rights were given, defendant should be reinstated in his title, on such terms as shall be *491just. To hold otherwise would hold out a bounty to bad faith. J udgment reversed, and new trial, with costs to defendant to abide the event. All concur.