
    Leopold Michel, Resp’t, v. Max Hallheimer, Impl’d, App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed May 12, 1890.)
    
    1. Deeds — Rescission.
    A failure to perforin an agreement upon which land is conveyed w afford ground to rescind the conveyance, when the remedy at law for t! breach of agreement would not give adequate relief.
    2. Partition — Pleading—Counterclaim.
    In an action for partition the ‘answer set up that defendant, being t equitable owner of the land in question under a contract of purcha; agreed to give plaintiff a half interest therein, under an agreement which the title was to be taken in their names and plaintiff was to pay the balance of the purchase price and advance money to erect buildings thereon, which were to be sold and the net profits divided; that plaintiff failed to make such advances or provide for such buildings; that defendant has rescinded the agreement, and offered to restore plaintiff to his former situation, and demanded a reconveyance of his half interest. Held, that the answer set up a valid counterclaim.
    Appeal from order denying defendant’s motion to set aside the verdict of a jury and for a new trial.
    The action was for a partition of lands in Brooklyn, upon an allegation that plaintiff and defendant, Max Hallheimer, 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 Hallheimer 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 a sewer was laid in the street, and Hallheimer 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 Hallheimer, pursuant to this contract. Michel failed to pay all the purchase noney as he had agreed, and Hallheimer paid half of it. The plaintiff never performed any part of this agreement, and did not idvance any money to improve the property, nor in any way pro-ride for the erection of the houses as agreed, although the sewer Vas laid in the street in August, 1888.
    The answer further alleged that plaintiff entered into the agreenent fraudulently as a mere device to obtain the half interest in he land and not intending to perform the stipulations; 'that there no adequate remedy at law for breach of the agreement, as the amages are indefinite; and that on discovering plaintiff’s disonesty defendant rescinded the agreement and offered to restore laintiff to the situation he was in before entering into the agreeent, and demanded a conveyance of the half interest he had proured, which was refused, and upon this the defendant demanded ch reconveyance as relief in this action.
    The court decided that the facts alleged by defendant Halleimer did not entitle him to any relief, and directed a verdict for le plaintiff.
    
      Ghas. J. Patterson, for.app’lt; Ira Leo Bamberger and Wm. J. aynor, resp’t
   Pratt, J.

We think that a valid counterclaim is set up in the iswer, and that defendant should have been allowed to introduce s 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. Nor could the injured party prove damages with adequate precision.

No 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. Now that the consideration is withheld on which those rights were given, defendant should be reinstated in his title on such ternis as shall be just. To hold otherwise would hold out a bounty to bad faith.

Judgment reversed and new trial, with costs to defendant to abide the event.

Barnard, P. J., and Dykman, J., concur.  