Darling v. Butler

• Decision Date: 05 February 1891
• Parties: DARLING v. BUTLER.
• Court: U.S. District Court — Southern District of New York

45 F. 332

DARLING v. BUTLER.

United States Circuit Court, S.D. New York.

February 5, 1891

O. F Hibbard, for plaintiff.

O. D Barrett and James P. Lowrey, for defendant.

WALLACE J.

The defendant has demurred to a complaint in an action at law to recover the price of land conveyed. The complaint alleges that December 18, 1883, at the city of Washington, the plaintiff delivered to defendant a deed conveying an undivided interest in real estate in New Mexico, known as the 'Mora Grant,' upon an expressed consideration of $25,000, 'but the real consideration for said deed was entirely different from the consideration expressed,' and that at the same time the defendant delivered to plaintiff an agreement in writing as follows:

'Received, Washington, D.C., December 18, 1883, of E. M. Darling, a deed of his interest in the Mora grant of New Mexico, for the purpose of making sale of said interest in connection with the sale of certain Washington, the defendant requested the plaintiff to throw off $5,000 agree, in case said sale shall not be consummated within a reasonable time, not to exceed six months from the date thereof, to return said deed to said Darling; or, in case I find it necessary to record said deed, I will within said time reconvey the interest conveyed to me by said deed; and if I sell said interest it shall be at a price not less than 75 cents per acre. I am to hold the deed as not delivered to me unless I shall record said deed. In case I make a sale of said Darling's interest it shall be on the same terms, both as to price and payments, that I may sell S. B. Elkins' and Thomas B. Catron's interest in said lands.'

The complaint then alleges that in March, 1884, the defendant stated to the plaintiff that he would purchase his interest in the lands, and pay $75,000 therefor, and the plaintiff then agreed to accept the said sum of $75,000 in full; that on the 15th day of January, 1885, at Washington, the defendant requested the plaintiff to throw off $5,000 from the $75,000, which he had agreed to accept as aforesaid, representing that Elkins and Catron had agreed to take $70,000 for their interests, respectively, and plaintiff, relying upon that statement, agreed to accept $70,000 in full for his interest, and the defendant then and there promised and agreed to pay plaintiff $70,000 therefor; that the defendant thereafter paid plaintiff in various sums at different times $11,057, and 'repeatedly promised the plaintiff that he would pay the full amount still unpaid of said $70,000. ' The complaint further avers that the plaintiff 'did deliver to the defendant, and the defendant did accept from the plaintiff, actually and unconditionally, and not in escrow, the aforesaid deed, as and of the 15th day of January, 1885, for the consideration of $70,000,"' and that the whole of said sum is due and unpaid, except the sum of $11,057.

In considering what the case is as made by the complaint the averment of the delivery of the deed 'of the 15th day of January, 1885, actually and unconditionally, and not in escrow,' must be regarded as merely a statement of the legal effect of what is alleged to have taken place between the parties on that day,-- the request to plaintiff by defendant to accept $70,000 for the land, and the promise of the defendant to do so,-- and of the subsequent payments made by defendant in recognition of his obligation. The deed was delivered December 18, 1883, and it must be assumed from the facts stated that from that time the deed remained in the possession of the defendant; otherwise the narrative in the complaint of what took place prior to January 15, 1885, is wholly irrelevant. If the case stated discloses a cause of action to enforce an executory agreement for the sale of an interest in land, the statute of frauds, which requires such an agreement to be in writing, and subscribed by the party to be charged therewith, is a good defense. The provisions of this statute are in force both in the District of Columbia, where the agreement was made, and in New Mexico, where the land is situated. On the other hand, if the agreement of the 15th day of January, 1885, was merely a modification of the pre-existing pecuniary liability of the defendant growing out of the original conveyance to him, and did not in any way affect the title to the land, because the defendant had already acquired a complete title, the action can be sustained notwithstanding it was oral merely. A party who has fully performed an agreement on his part can recover the consideration promised by the other, notwithstanding the agreement, while executory, would not be enforceable under the statute of frauds. The latter cannot set up the statute as an excuse for not paying for the benefit he has derived by the other's performance; but whether a recovery in such a case can be had upon the promise which was the consideration for the performance, or only upon a quantum meruit, is a question upon which the authorities are not agreed. The logical doctrine...