Kirtz v. Peck

• Decision Date: 16 April 1889
• Citation: 21 N.E. 130,113 N.Y. 222
• Parties: KIRTZ v. PECK.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 222

21 N.E. 130

KIRTZ

v.PECK.¹

Court of Appeals of New York.

April 16, 1889.

Appeal from supreme court, general term, Fifth department.

VENDOR AND VENDEE-CONSTRUCTION OF CONTRACT-FAILURE OF CONSIDERATION.

1. Plaintiff's intestate entered into an agreement with defendant by which, in consideration of the sum of $1,500 ‘to her in hand paid,’ she agreed to release, quitclaim, and set over to the defendant all her interest in certain premises, which had been previously conveyed by her to defendant. It was further agreed that the intestate should procure a release of her husband's interest, ‘if any he has,’ to said premises; and that, when the defendant should pay the $1,500, the intestate and her husband should discharge the defendant from all claims which either of them had against the defendant. At the same time the defendant executed a note for the $1,500. No reference was made in either instrument to the other, and at the maturity of the note the defendant commenced making payments, without claiming that he was entitled to a concurrent performance of any obligations of the intestate. Held, that the performance of the covenants for the said releases entered into by the intestate was not intended to be concurrent with the payment of the purchase money, and that an action could be maintained on the note without showing such performance.

VENDOR AND VENDEE-CONSTRUCTION OF CONTRACT-FAILURE OF CONSIDERATION.

2. In an action on the note it appeared that the contract provided for the surrender of the possession of the land two years before the action was brought, and defendant made no allusion in his answer, nor in his testimony, to any breach of the contract in this respect; and, while the answer set up as a counter-claim an indebtedness for rent for a stated period before the surrender, no claim was made for rent after that time. Held, that the trial court was justified in assuming that the defendant had taken possession of the land as provided by the contract, and that, such being the case, the defense of failure of consideration could not be made.

J. M. Dunning, for appellant.

J. D. Decker, for respondent.

RUGER, C. J.

Upon a trial at circuit, after evidence given on both sides, the court directed a verdict for the plaintiff. The defendant requested a verdict to be ordered in his favor, and the plaintiff made a similar demand on her behalf. The court granted plaintiff's request, and denied that of defendant, and the case comes here upon the exception to the ruling of the court. Neither party asked to go to the jury upon any question of fact, and if, therefore, the evidence presented any such question, the court was authorized, by the mode in which the case was tried, to find thereon; and, if there was evidence to sustain the finding, it is conclusive upon the parties on this appeal. By requesting the court to determine the case as one of law, the party waived his right, if any, to go to the jury upon questions of fact, and submitted all questions involved to the determination of the court.

The action was originally brought by Jane A. Bush, the payee of a promissory note for $1,500, dated May 27, 1875, and payable March 1, 1876, with interest. The original plaintiff died, and the action was revived in the name of her administratrix. The defense set up by the answer was an agreement between the parties, made on the 19th day of May, 1875, reciting that the defendant had theretofore purchased a farm of the plaintiff's intestate and her husband, and was unable to obtain possession thereof, and that, in order to avoid trouble, vexation, and delay, the defendant had compromised the dispute at the sum of $1,500, which was the same money mentioned in the complaint, and that it was agreed that the plaintiff, in consideration of said $1,500 to be paid, would execute and deliver to said defendant a quitclaim, release, and discharge of the said defendant from all claims whatsoever, and all interest in said premises theretofore conveyed by her and her husband to the defendant; ‘that said $1,500 was not to be paid to said plaintiff until said Jane A. Bush and her husband should execute and deliver to said defendant a release and discharge of said Peck from all claims, dues, and demands which they, or either of them, have or had against said defendant;’ and that said plaintiff had neglected and refused to execute and deliver such release or discharge. Other defenses were also set up by way of counterclaim, but, as they were unproved on the trial, they present no question on this appeal. The defense presented by the answer was, therefore, the non-performance by the plaintiff's intestate of a covenant made by the contract a condition precedent to the payment of the note, and a refusal to execute and deliver a quitclaim and release of her interest in the land which was the subject of the agreement. These defenses were wholly unproved on the trial. The defendant did, however, put in evidence a sealed written agreement between himself, as party of the first part, and plaintiff's intestate, of the second part, dated May 19, 1875, whereby it was agreed ‘that the said party of the second part, for and in consideration of the sum of fifteen hundred dollars to her in hand paid, in manner as hereinafter stated, does hereby agree to release, quitclaim, and set over unto the party of the first part all her right, title, and interest in the premises heretofore conveyed by the party of the second part and her husband to the party of the first part. The party of the first part does hereby agree that the party of the second part may remain in possession of the house in which she now lives, and to have the use of the garden connected with said house, until the first day of April next, at which time the party of the second part does hereby agree to surrender said premises to the party of the first part. And it is also agreed by and between the parties to this agreement that the party of the first part is to take possession of all of said premises, with the exception of the house and garden aforesaid, and the party of the first part is to have all the spring crops that have been sown and put in on said premises. The party of the second part does also agree to procure her husband's release, if any he has, to said...