Flickinger v. Glass

CourtNew York Court of Appeals
Citation118 N.E. 792,222 N.Y. 404
PartiesFLICKINGER v. GLASS et al.
Decision Date05 February 1918


Appeal from Supreme Court, Appellate Division, Fourth Department.

Action to foreclose a vendee's lien by Smith M. Flickinger against Allie J. Glass and Kate E. Glass. From a judgment of the Appellate Division (171 App. Div. 974,156 N. Y. Supp. 1122), affirming a judgment in favor of defendants, plaintiff appeals. Reversed, and new trial granted.

W. W. Chamberlain, of Buffalo, for appellant.

Willard H. Ticknor, of Buffalo, for respondents.


This is an action to foreclose a vendee's lien. In October, 1910, one Glass was the owner of a farm in Erie county. He made an oral contract to sell it to one Whiting for $6,500. He was to take in part payment a stock of groceries and fixtures of the agreed value of $2,625. The contract described the farm as containing 100 acres. Before the time set for closing title, Whiting made delivery of the groceries and fixtures. He learned later that the farm contained only 93.7 acres. The deficiency, 6.3 acres, had been taken for railroad purposes. He tendered full performance on his part and demanded a conveyance in accordance with his contract. The finding is that performance was refused by Glass.

Upon this breach of the contract, Whiting made an assignment of all his cause of action and of any equity in the land to Flickinger, the plaintiff. In spite of this assignment, he sued in his own name for the value of the groceries and fixtures. We know from our own records that the judgment was reversed in this court on the ground that he was not the real party in interest, and therefore could not sue. Whiting v. Glass, 217 N. Y. 333, 111 N. E. 1082. Before the reversal, he assigned the judgment to Flickinger, who already held the cause of action. This suit was then begun. Judgment was demanded that the value of the groceries and fixtures be declared a lien upon the farm. Judgment also was demanded that the lien be held to be superior to a mortgage which Glass in the interval had made to his wife. The trial judge held that by force of the earlier action there had been an election of remedies and a waiver of the lien. The result up to the present time is therefore this: The plaintiff has lost both the judgment and the lien. He has lost the judgment upon the ground that his assignor could not sue after the assignment of the cause of action, and he has lost the lien upon the ground that his assignor did sue and that he is bound by the election. The dilemma is unfortunate, and we think unnecessary.

[1] There is no inconsistency between an action to recover the payments made by a vendee and an action to declare them a lien upon the land. The two remedies are concurrent. The plaintiff, in suing through Whiting for the value of the groceries and fixtures, did not elect to treat the contract as void in its inception. He is not in the position of the plaintiff in Davis v. Rosenzweig Realty Co., 192 N. Y. 128, 84 N. E. 943,20 L. R. A. (N. S.) 175, 127 Am. St. Rep. 175, who said that because of fraud there never was a contract, and who for that reason was held to have lost a lien which owes its origin to a contract. That is not the plaintiff's claim. He concedes that a valid contract was made, and complains that the vendor is unable to perform it. His position is like that of the vendee in Elterman v. Hyman, 192 N. Y. 113, 84 N. E. 937,127 Am. St. Rep. 862,15 Ann. Cas. 819, who established a contract valid in its inception, and obtained a lien for part payments on proof that the title was defective. The distinction is between abandonment of performance and rescission ab initio. Elterman v. Hyman, supra, 192 N. Y. at page 126, 84 N. E. 937,127 Am. St. Rep. 862,15 Ann. Cas. 819;Anvil Mining Co. v. Humble, 153 U. S. 540, 552, 14 Sup. Ct. 876, 38 L. Ed. 814; Whitbred & Co., Ltd., v. Watt, 1902, 1 Ch. D. 835. The lien is the same whether payment is made in money or in goods. Wickman v. Robinson, 14 Wis. 493, 80 Am. Dec. 789;N. Y. News Pub. Co. v. Nat. S. S. Co., 148 N. Y. 39, 41,42 N. E. 514. Part performance under the contract gives a right to reimbursement, and equity secures the right through a lien upon the land.

[2] The argument is made that, even if the lien survived the choice of remedies, there was none the less a waiver of lien through the reduction of the claim to judgment. One may abandon a lien as vendor or as vendee by the acceptance of a new security. Maroney v. Boyle, 141 N. Y. 462, 467,36 N. E. 511,38 Am. St. Rep. 821. Even then the question is sometimes one of intention. Cordova v. Hood, 17 Wall. 1, 21 L. Ed. 587. It is not enough that ‘the parties may not have contemplated the assertion of the lien in the first instance.’ Fisher v. Shropshire, 147 U. S. 133, 143, 13 Sup. Ct. 201, 205 (37 L. Ed. 109);Slide & Spur Gold Mines v. Seymour, 153 U. S. 509, 517, 14 Sup. Ct. 842, 38 L. Ed. 802. But the obligation of the debtor in a new form, whether a note or a bond, or even a judgment, is not within the meaning of this rule a new security. That has many times been held where a vendor obtained judgment at law for the price, and sued afterwards in equity for the foreclosure of his lien. Dubois v. Hull, 43 Barb. 26, 30;Graves v. Coutant,...

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15 cases
  • F.E. Lykes & Co., Inc. v. Grove
    • United States
    • United States State Supreme Court of North Carolina
    • 2 Julio 1931
    ...... between an abandonment of performance which recognizes the. existence of a valid contract, and rescission ab initio. Flickinger v. Glass, 222 N.Y. 404, 118 N.E. 792;. Anderson v. Corporation, supra. . .          There. was no error, therefore, in requiring the ......
  • Bean v. Walker
    • United States
    • New York Supreme Court Appellate Division
    • 11 Julio 1983
    ...... The vendor may enforce his lien by foreclosure or an action at law for the purchase price of the property--the remedies are concurrent (Flickinger v. Glass, 222 N.Y. 404, 118 N.E. 792; Zeiser v. Cohn, 207 N.Y. 407, 101 N.E. 184; Charles v. Scheibel, supra). The conclusion to be reached, of ......
  • F. E. Lykes & Co. Inc v. Grove, 598.
    • United States
    • United States State Supreme Court of North Carolina
    • 2 Julio 1931
    ...between an abandonment of performance which recognizes the existence of a valid contract, and rescission ab initio. Flickinger v. Glass, 222 N. Y. 404, 118 N. E. 792; Anderson v. Corporation, supra. There was no error, therefore, in requiring the plaintiff to elect between its action to res......
  • South Carolina Federal Sav. Bank v. San-A-Bel Corp., SAN-A-BEL
    • United States
    • Court of Appeals of South Carolina
    • 16 Octubre 1991
    ......Yarborough, 11 Ohio St.2d 195, 228 N.E.2d 841 (1967); National Indemnity Co. v. Banks, 376 F.2d 533 (5th Cir.1967); Flickinger v. Glass, 222 N.Y. 404, 118 N.E. 792 (1918); Ihrke v. Continental Life Ins. & Inv. Co., 91 Wash. 342, 157 P. 866 (1916); Stahl v. Roulhac, ......
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