Eddy v. Davis

• Decision Date: 08 October 1889
• Citation: 22 N.E. 362,116 N.Y. 247
• Parties: EDDY et al. v. DAVIS.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 247

22 N.E. 362

EDDY et al.

v.DAVIS.¹

Court of Appeals of New York,

Second Division.

Oct. 8, 1889.

Appeal from an order of the general term of the third judicial department, which reversed a judgment in favor of the plaintiffs against the defendant, entered upon a decision of the court at special term, and granted a new trial. The action was brought to recover from defendant unpaid installments upon a contract to purchase land. Plaintiffs agreed to sell to defendant a lot of land in the village of Westport, upon which there was a brick store, for the sum of $1,600, payable in annual installments varying from $100 to $200. The contract provided that possession should be given on payment of the first installment, and contained the following provisions: ‘The party of the second part [defendant] is to have one hundred feet depth of land, including the store, running east and west, running north and south the width of the store. The said parties of the first part agree that, on receiving the sum of eight hundred dollars at the time and manner above mentioned, they will execute and deliver to the said party of the second part, at their own proper cost and expense, a good and sufficient deed of said property, by the party of the second part giving to the parties of the first part a bond and mortgage on said property for the remaining sum unpaid. And the said party of the first part agrees to keep open a right of way back of said building. It is understood that the party of the second part is to put up during the coming year a building on the east end of said store to cost not less than six hundred dollars.’ Defendant paid the first installment under the contract, and entered into possession, and erected the building called for by the contract. He made other payments in amount about sufficient to pay the interest on the purchase money. At the time of the commencement of the action two installments, amounting to $300, were not due. At the time the agreement was made the plaintiffs owned other property adjoining the lot sold defendant on the north, and bounded on the west by the principal street of the village, and over this property access could be had from the street to the rear of defendant's lot. In June, 1875, plaintiffs sold to one Joseph Hutchings all the rest of the property owned by them without any reservation of a right of way to defendant's lot, and, at the time of the commencement of this action, they owned no property over which they could give a right of way to the rear of defendant's store.

VENDOR AND VENDEE-CONTRACT-TENDER.

1. A provision in a contract for the sale of land, the price being payable by installments, that, on the payment of a sum named, the vendor shall, at his own expense, convey the land to the vendee, who shall execute a bond and mortgage for the remaining installments, is not a mere stipulation for the vendee's benefit, which he waives by failing to pay and tender a bond and mortgage as provided, but is a covenant by the vendor, who cannot, after the maturity of enough of the installments to aggregate the sum upon the payment of which the vendee would be entitled to a deed, maintain an action for such installments without first tendering a deed.

VENDOR AND VENDEE-CONTRACT-TENDER.

2. The tender of a deed, after the time fixed for the conveyance, is essential to the maintenance of an action for part of the purchase money, though some of the installments are not due.

VENDOR AND VENDEE-CONTRACT-TENDER.

3. It would not constitute a tender for the vendor to inform the vendee that he (the vendor) was ready and willing to perform the contract on his part if the vendee was ready to pay, when the vendor had, after the contract was made, disabled himself from complete performance by conveying away other land, over which he had agreed to give the vendee a right of way to the property sold.

VENDOR AND VENDEE-CONTRACT-TENDER.

4. An agreement by the vendor to ‘keep open a right of way back of’ the property sold, which right of way was intended to be conveyed with the premises, is necessary to their enjoyment, and constitutes half their value, is part of the consideration; and, if the vendor conveys away the adjacent land without reserving the right of way, he connot recover the purchase money.

Richard L. Hand, for appellants.

Chester McLaughlin, for respondent.

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

The trial court found as conclusions of law that the defendant ‘was not entitled to a conveyance of property, or of such right of way, until the full sum of sixteen hundred dollars, the consideration provided by said contract, was paid; and that the provision in said contract for deeding the premises to the defendant upon the payment of eight hundred dollars and interest was for his [defendant's] benefit, and he could avail himself of it at his option by paying such money at the times provided in the contract, and demanding a deed and tendering a bond and mortgage. Not having paid or made such demand or tender, and having waived his right to make any claim under this provision, as appears in the sixth finding of fact, the contract was to be treated as if it had been omitted, and, the action having been brought to recover installments due, no tender of a deed by the plaintiffs was necessary to enable them to maintain this action.’ The sixth finding of fact referred to was as follows: ‘That immediately before the commencement of this action the plaintiffs, by their attorney, applied to said defendant, and informed him that plaintiffs were ready and willing to perform said contract on their part, if he was ready to pay; to which defendant replied that he could not pay, and said he wanted to give up the property, and thereupon plaintiffs commenced this action.’

It is undisputed that, within two months after the defendant entered into possession of the property, plaintiffs sold all their adjoining land, and thus put it out of their power to comply with their agreement with defendant, and keep open a right of way to the rear of his store; and at the time of the offer, mentioned in the finding of fact I have quoted, the plaintiffs were powerless to fulfill their agreement. The finding, therefore, that they were ready to perform, or that their offer and defendant's refusal constituted a waiver of tender of the deed, cannot be sustained. A tender imports not only readiness and ability to perform, but actual production of the thing to be delivered. The formal requisite of a tender may be waived, but to establish a waiver there must be an existing capacity to perform. Nelson v. Elevating Co., 55 N. Y. 484;Lawrence v. Miller, 86 N. Y. 137;Bigler v. Morgan, 77 N. Y. 318. Here there was no existing capacity, as, having sold all their adjacent lands, plaintiffs could not perform their covenant ‘to keep open a right of way’ back of defendant's store. The conclusion of a waiver is not therefore sustained. If, however, the construction put upon the contract by the learned trial court in the conclusion of law I have quoted is correct, then the finding of a waiver of tender of performance is unimportant. Never having paid $800 of the purchase money, defendant was not in a position to demand the conveyance, and there being in the contract, as construed by the trial court, no covenant on the part of the plaintiffs to deliver the deed until the full consideration was paid, tender of the conveyance as a condition precedent to recover for unpaid installments was not necessary, and no question as to the sufficiency of the facts to constitute a waiver of tender could legitimately arise. Where a contract for the sale of land provides for partial payments of the purchase money prior to...