Baumann v. Pinckney

• Decision Date: 04 March 1890
• Citation: 118 N.Y. 604,23 N.E. 916
• Parties: BAUMANN v. PINCKNEY.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 604

23 N.E. 916

BAUMANN

v.PINCKNEY.¹

Court of Appeals of New York, Second Division.

March 4, 1890.

Appeal from a judgment of the general term of the court of common pleas of the city of New York, affirming a judgment in favor of the defendant entered upon the decision of the court at special term. Action for the specific performance of an executory contract to convey land situate in the city and county of New York.

The agreement between the parties, dated June 22, 1886, provided that the defendant, in consideration of $126,000, should convey the premises in question to the plaintiff on the 1st of September, 1886, at 1 o'clock P. M., at the office of John C. Shaw. The sum of $2,000 was paid down, and the remainder of the purchase money was to be paid upon the delivery of a deed at the time and place aforesaid. Shortly before the day named for performance of the contract, it was verbally agreed between the parties-each acting through a duly-authorized agent-that if, at the time and place specified for payment and delivery, ‘the purchase price of the said premises were increased to $133,000, and a further payment on account thereof, of $10,000, were made, or if the purchase price were increased to $131,000, and a further payment on account thereof, of $20,000, were made, the time for performance of the contract should be extended.’ Relying upon his right to an extension if he accepted this option in either form, the plaintiff did not prepare to close the contract, and pay the remainder of the purchase price, on the 1st of September, but, by his agent, was present at the hour and place named, ‘with a certified check for $10,000, prepared to pay the same to the defendant,’ and ‘requested to have the time for the performance of the contract extended.’ The defendant was not present, either in person, or through any one whom she had authorized to attend and give an extension for 60 days, the period which the plaintiff claimed was embraced by said option. Mr. Shaw was present, and also Mr. Pierce, who claimed to be authorized to receive the $10,000; but he had not appeared in the business before, and, although in fact duly authorized to act for the defendant to a certain extent, he had no written authority from her, and exhibited no evidence of his authority to act for her, either in receiving the money or otherwise. The plaintiff objected to paying the $10,000 except to the defendant, or to some one showing authority from her to receive it. Thereupon, Mr. Shaw made a tender of a deed for the premises, and demanded payment of the purchase money unpaid. The plaintiff was not prepared to carry out that agreement, so Mr. Shaw gave notice that the contract was at an end, and that the defendant would retain the $2,000 which had been paid, and that she refused to recognize any further right of the plaintiff in the premises. The plaintiff, through his agent, informed Mr. Shaw that he was ready at any time that the defendant, or some one who could justify as her agent, applied for the same, to deliver to her the said $10,000. He refused, however, to accept an extension signed either by Mr. Shaw or Mr. Pierce, upon the ground that they were not properly authorized to grant the same, as neither had any power of attorney, or to deliver the check to either of them, even if made payable by indorsement to the defendant. The parties differed about the length of the agreed extension; the plaintiff claiming that it was to be for 60 days, while the defendant contended that it was to be for only 30 days. They also differed as to whether, if the contract was extended, the principal sum named therein would draw interest during the period of extension. After the 1st of September the defendant did not notify the plaintiff to perform the contract, and she has never returned nor tendered the $2,000. She owned the premises, and had the right to convey them. A notice of pendency was filed in this action on the 2d of September, but the summons and complaint, although issued that day, were not served until October 29th; and in the mean time the defendant, who had no notice of said facts, had contracted to sell the premises to other parties for the sum of $137,500.

The foregoing facts, among others, were found, in substance, by the trial court; and the defendant admitted by her answer that on the 29th of October, and before the expiration of the term of 60 days, the plaintiff duly notified the defendant that on the next day, at her residence, or at such other time and place as she might designate, he would tender to her the balance of the purchase price, and that he was willing to bring with him a notary public, and a deed in readiness for her to execute. She thereupon referred him to her agent, Mr. Pierce, at his office; and on October 30th, and before the expiration of the 60 days, the plaintiff called upon him at that place for the purpose of complying with the directions of the defendant, but found the office locked. The plaintiff forthwith gave Mr. Pierce written notice of these facts, and requested the defendant or her agent to designate a time and place at which such tender could be made. Mr. Pierce answered, requesting the plaintiff to meet him November 1st at Mr. Shaw's office, which he did accordingly, and then and there offered to fulfill his part of the agreement, and tendered the remainder of the purchase price, $131,000. The defendant, through her said agent, refused to accept said sum, and declined to give any deed of the premises, upon the ground that the plaintiff had forfeited the contract, and all his rights thereunder, on the 1st of September, 1886. She also refused to return the $2,000 paid down on the contract, upon the same ground. It appeared that, before or at the time that the summons and complaint were served on the defendant, a letter was delivered to her from the attorney for the plaintiff, stating that he would be ready to make a tender of the balance of the purchase price the next day, (October 30th,) and to receive her deed; that he would call upon her, with a certified check for the amount and interest, on that day, at 11 A. M.; that, if that hour or day would not suit, or if she demanded bills or gold coin, he would accommodate himself to her wishes. He added: ‘I desire to do anything and everything which may be necessary to make the tender and payment agreeable to you, as to both time and place. Please answer by bearer.’ The defendant read the letter, and referred the bearer to her representative, Mr. Pierce, designating his office and stating that the matter was entirely in his charge for her. The uncontradicted evidence tends to show that from June 22 to September 1, 1886, the property rapidly increased in value, and that at the date of the trial, in the month of December following, it was worth $160,000.

The trial court found many conclusions of law, and, among others, that time was of the essence of the contract, and, as plaintiff had not performed at the time and place provided in the original agreement, he could not maintain the action; that there was no valid contract made for an extension of the time to perform the agreement; that the refusal of the plaintiff to pay the $10,000, and accept the extension of time from Mr. Shaw or Mr. Pierce, because neither had a power of attorney, or other evidence of authority, was based upon untenable grounds, and constituted a refusal to accept the option, and a failure to perform the contract; that the tender on November 1st ‘was insufficient and too late for the purpose of performing the said agreement, dated Jung 22, 1886, as alleged to have been modified by the plaintiff's alleged acceptance of defendant's option;’ that the defendant was ‘entitled to judgment dismissing the complaint in equity, because the plaintiff’ had ‘an adequate and complete remedy at law;’ and that she was ‘entitled to judgment in her favor against the plaintiff upon the merits.’ The complaint was dismissed upon the merits, with costs, and an extra allowance of 1 per cent. upon $126,000, the value of the property as fixed by the original agreement.

John E. Parsons, for appellant.

John C. Shaw, for respondent.

VANN, J., ( after stating the facts as above.)

The only decision of the special term that appears in the record before us consists of the findings proposed by the parties marked ‘Found’ or ‘Refused,’ as the case may be, by the judge who presided at the trial. Thus it happened that the court directed that the complaint should be dismissed, both upon the merits, and because the plaintiff had an adequate remedy at law. According to a long and unbroken line of decisions, the latter ground is clearly untenable. As early as 1835, it was said by Chancellor WALWORTH that a suit in equity against the vendee to compel a specific performance of a contract to purchase land had always been sustained as a part of the appropriate and acknowledged jurisdiction of a court of equity, although the vendor has, in most cases, another remedy, by an action at law upon the agreement to purchase. Brown v. Haff, 5 Paige, 235. One of the earliest decisions of this court was to the same effect, (Crary v. Smith, 2 N. Y. 60;) and the right of a vendee to maintain specific performance is too well settled to require further discussion, (Stone v. Lord, 80 N. Y. 60; Fry, Spec. Perf., 3d Amer. Ed., 8; Pom. Eq. Jur. §§ 30-42.) No such defense was set up in the answer as the established practice requires, and no such question was raised upon the trial. Ostrander v. Weber, 114 N. Y. 95, 21 N. E. Rep. 112; Hollister v. Stewart, 111 N. Y. 644, 659, 19 N. E. Rep. 782.

As the court, however, did not refuse to consider the case, but exercised its jurisdiction by deciding it upon the merits, it may be that the error above pointed out did not prejudice the plaintiff, because the general result may have been right,...