Condict v. Cowdrey

• Decision Date: 02 December 1890
• Citation: 25 N.E. 946,123 N.Y. 463
• Parties: CONDICT v. COWDREY.
• Court: New York Court of Appeals Court of Appeals

123 N.Y. 463

25 N.E. 946

CONDICT

v.COWDREY.

Court of Appeals of New York.

Dec. 2, 1890.

Appeal from superior court of New York city, general term.

W. W. MacFarland, for appellant.

H. G. Atwater, for respondent.

FINCH, J.

The judgment entered by direction of the court awarding his commissions to the plaintiff stands upon the legal construction and effect of the two papers-one a receipt, and the other an agreement for a deposit in escrow-which the court held merged all prior negotiations, and established a contract for the sale and purchase of the Kentucky lands. If that construction was correct, the judgment awarded was an inevitable result; but the defendant claims that the writings show merely an option or privilege, for which the alleged vendees paid the sum of $2,000, and which left them at liberty to purchase or to refuse to purchase at their own choice and pleasure, and so the minds of the parties never met, and the broker's effort to effect a sale failed of success. The agreement for an escrow was entitled ‘Conditions of Hypothecation,’ and was as follows: ‘There is hereby placed with the Second National Bank of New York city, for safe keeping and delivery as per these presents, eight deeds, transferring the title to 435,000 acres of land situated in the state of Kentucky from J. H. Cowdrey, executrix, to W. A. Millikin and Fred Wolffe; likewise three obligations for the payment of money,-one for $13,834, payable July 27, 1888, one for $13,833, payable August 27, 1888, and one for $13,833, payable October 27, 1888,-which three obligations are made for the purchase of said lands. Now if the above obligations are paid at maturity, as provided by said obligations, then the inclosed deeds are to be delivered to said Millikin or Wolffe, but, in case of any defalcation in the payment, the deed and papers are to be delivered to Mrs. J. H. Cowdrey, and all moneys paid shall be forfeited in liquidation of damages sustained by virtue of the non-payment of any of said obligations.’ The receipt given was signed by the vendor, dated April 26, 1888, and was in these words: ‘Received of Fred Wolffe and W. A. Millikin ($2,000) two thousand dollars, and three acceptances for $13,833 1/3 each, drawn by W. A. Millikin on Fred Wolffe to the order of Mrs. Jane H. Cowdrey, and accepted by said Wolffe, and due respectively at 90 days, four months, and six months from date, which cash and acceptances are in payment of several tracts of land lying in eastern Kentucky, containing 435,000 acres, and for which the said Mrs. Cowdrey has this day executed eight several deeds, and said deeds, with said acceptances, are deposited as an escrow with the Second National Bank of New York; and, upon the payment of said acceptances, said deeds are to be delivered by said bank to said Wolffe and Millikin. The said parties are to have the privilege of paying off said acceptances at any time without waiting for their maturity.’ These two papers, executed at the same time, and relating to the same subject-matter, should of course be read together, and may be construed in the light of such surrounding facts and circumstances as were proved without objection, and remained without the least contradiction. Both parties refer to them as tending to explain the written instruments; but the defendant goes further, and, insisting that there was an unexpressed condition upon which the writings were delivered, claims the right to prove that fact, and so establish what was the whole and complete contract. Taken by themselves, I think the writings on their face tend to establish the existence of a contract of sale. The receipt specifies that the cash and acceptances ‘are in payment for’ the lands; and the agreement for an escrow, after describing the acceptances, specifically declares ‘which three obligations are made for the purchase of said lands.’ And the further provision that, in case of any ‘defalcation’ in the payment ‘the deeds and papers are to be delivered to Mrs. J. H. Cowdrey, and all moneys paid shall be forfeited in liquidation of damages sustained by virtue of the non-payment of any of said obligations,’ is apparently inconsistent with the theory of a mere option and the absence of an agreement of sale. An omission to pay when the contract imposed no obligation to pay would not naturally be termed a ‘defalcation;’ and the money...